Editor’s Note: Elie Honig is a CNN senior legal analyst and former federal and state prosecutor, and author of “Hatchet Man: How Bill Barr Broke the Prosecutor’s Code and Corrupted the Justice Department.” The views expressed here are his own. View more opinion on CNN. Watch Honig answer readers’ questions on “CNN Newsroom with Jim Acosta” on weekends.
When federal Judge Andrew Hanen ruled Friday that the Deferred Action for Childhood Arrivals (DACA) program is unconstitutional, he threw into doubt the future of the Obama-era initiative that protects from deportation undocumented immigrants who came to the United States as children. The future of DACA now rests with federal courts of appeals, and the legal landscape isn’t promising for the program’s survival – unless Congress steps in to rescue it.
If DACA – created through executive action by then-President Barack Obama in 2012 – does fall, the result will be potentially catastrophic for hundreds of thousands of innocent young beneficiaries, commonly referred to as “Dreamers.” DACA protects an estimated 700,000 undocumented immigrants who arrived in the United States before age 16.
Without DACA’s protections, these young people will be subject to deportation, even if they have committed no crime and done nothing wrong. Even former President Donald Trump – whose administration sought to repeal DACA, unsuccessfully – has described those protected by DACA as “good, educated and accomplished young people.”
Just last year, DACA survived an existential legal challenge when the Supreme Court, by a five to four majority, rejected the Trump administration’s effort to repeal the Obama-era executive action that created the program. The Court ruled that, while one president generally has broad authority to modify or repeal the executive actions of a prior president, such action still must comply with certain administrative procedures. The Court found the Trump administration failed to follow these guidelines because it never offered a “reasoned explanation for its action.”
But the 2020 Supreme Court opinion should provide little comfort to those who rely on DACA’s protections. First, last week’s ruling must go through the intermediate Fifth Circuit Court of Appeals, which is one of the country’s most conservative (arguably the most conservative) federal courts of appeals. If the Fifth Circuit upholds last week’s decision to strike down DACA and the Supreme Court declines to hear the case – and the Court declines to hear far more cases than it accepts – then DACA is a goner.
Second, the 2020 case presented a different legal issue. That case involved the authority of one president to un-do a predecessor’s executive action, while the new case involves the underlying constitutionality of DACA itself; Judge Hanen ruled that DACA is unconstitutional because it was created by executive action rather than legislation.
Third, since the 2020 opinion that (barely) upheld DACA, Justice Ruth Bader Ginsburg has passed, and has been replaced by Justice Amy Coney Barrett. In the 2020 decision, Ginsburg sided with the other three liberal justices plus Chief Justice John Roberts; if Barrett sticks with her conservative colleagues on the bench, last year’s 5-4 win for DACA would become a 5-4 loss.
But all is not lost for DACA, yet. Congress has the power to step in and save the program by passing legislation encoding it as federal law. President Joe Biden called Friday’s decision “deeply disappointing,” and Biden’s fellow Democrats hold majorities in both the Senate and the House. But the real question is whether the Democrats are willing to take action to match their party’s rhetoric. It’s one thing to decry the potential end of DACA in press clippings, but another to exercise the political will necessary to save it. It’s unclear whether the Democrats are willing to act, up to and including potentially limiting or ending the filibuster, which would require at least 60 votes – all 50 Democrats plus at least 10 Republicans – to pass legislation.
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Now, your questions:
Fran (Arizona): Can DOJ step in and put an end to the so-called “audit” of Arizona ballots cast in the 2020 election?
The Justice Department has notified Arizona authorities that it is aware of the purported “audit,” and that it will monitor for potential violations of federal law. Specifically, DOJ warned Arizona officials about potential voter intimidation and suppression, and about potential violations of federal law requiring state and local officials to maintain custody of ballots for 22 months following an election. To date, the dispute has not come to a head, but, if necessary, the Justice Department could go to court seeking to limit or shut down the ongoing Arizona “audit.”
Alberto (Florida): If prosecutors can’t get anyone inside the Trump Organization to cooperate, can they still bring charges against Donald Trump?
I’m skeptical about whether New York prosecutors can develop sufficient evidence to charge former President Trump without cooperation from Trump Organization insiders. Thus far, prosecutors’ efforts to flip longtime Trump Organization Chief Financial Officer Allen Weisselberg and Chief Operating Officer Matthew Calamari have not succeeded. That could change; I’ve seen plenty of people cooperate later in the process, particularly after being charged or convicted. But at the moment, it appears prosecutors do not have cooperation from these insiders.
Keep in mind that it is not enough for prosecutors to argue that a fraud occurred within the Trump Organization, hence the bosses must be liable. That might be logical, and it might even be true, but prosecutors must be able to prove specifically and beyond a reasonable doubt that an individual knew of and participated in a criminal scheme.
Unless prosecutors have smoking-gun evidence that we don’t currently know about – an incriminating email or text or recording for example – then they’ll need a well-positioned cooperator to supply the necessary proof.