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The DACA controversy demonstrates the wages of the "progressive" conceit that our ingenious constitutional system is obsolete, that modern problems are so unprecedentedly complex they demand extra-constitutional solutions — such as a president's usurping of congressional power, exactly the road to tyranny the Framers feared.
That is what President Obama did in presidentially legislating the Deferred Action on Childhood Arrivals program. Contrary to much of the public commentary, the defect in DACA is not that it was done in the form of an executive action (under the guise of a Department of Homeland Security memorandum). There is nothing wrong with an executive order that merely directs the lawful operations of the executive branch.
The problem is the substance of executive action. DACA is defective in two ways. First, it presumes to exercise legislative power by conferring positive legal benefits on a category of aliens (the "dreamers," as concisely described in Yuval Levin's Corner post). Second, it distorts the doctrine of prosecutorial discretion to rationalize this presidential legislating and to grant a de facto amnesty. These maneuvers violated core constitutional principles: separation of powers and the president's duty to execute the laws faithfully.
There has never been a shred of honesty in the politics of DACA. Democrats have taken the constitutionally heretical position that a president must act if Congress "fails" to. They now claim that to vacate DACA would be a travesty, notwithstanding that the program is blatantly illegal and would be undone by the courts if President Trump does not withdraw it. For his part, candidate Trump loudly promised to repeal Obama's lawless decree but, betraying the immigration-permissivist core that has always lurked beneath his restrictionist rhetoric, Trump has wrung his hands through the first eight months of his presidency. As for the Republican establishment, DACA is just another Obamacare: something that they were stridently against as long as their objections were futile, but that they never sincerely opposed and — now that they are accountable — cannot bring themselves to fight.
It is all so unnecessary.
Trump should do what he should have done his first day in office. He should declare the Obama-administration guidance null and void. Having sworn to preserve, protect, and defend the Constitution, he could explain that, while he would certainly execute any accommodations Congress enacts for "dreamers," the president has no authority to confer positive legal benefits — such as work permits — on aliens. Trump could remind the public that President Obama himself publicly admitted he did not have the constitutional power to do what DACA does. Consequently, it makes sense for Trump to end the program now rather than continue on an unconstitutional course that the courts would inevitably invalidate. You don't fix a problem by persisting in a lawless holding pattern.
The president could then explain how prosecutorial discretion legitimately functions, and how it would be exercised in favor of the dreamers.
In principle, prosecutorial discretion is a resource-allocation doctrine: The assets available for law-enforcement functions are finite, so the executive branch must prioritize — meaning serious violations get the most attention, while comparatively trivial violations often go unaddressed. Nevertheless, the president may not use prosecutorial discretion as a ruse to, in effect, repeal congressional statutes or decree new "laws." To use some concrete examples, the federal government virtually never prosecutes possession of marijuana or fraud under a low dollar amount (say, $10,000). That does not mean such acts are no longer illegal; the government reserves the right to prosecute them in individual cases where peculiar circumstances warrant doing so. Still, absent highly unusual facts, these illegal acts are ignored so that sparse investigative resources can be targeted at more significant illegality.
The new president could thus direct that prosecutorial discretion be exercised on behalf of aliens who had been brought to (or kept in) the United States illegally as children. The Justice Department would reserve the right to take enforcement action in individual cases — for example, in the case of a dreamer who was convicted of a serious crime or had an extensive criminal record. That kind of situation aside, however, no action would be taken to detain or deport the dreamers.
Would doing this leave the dreamers in a legal limbo? Of course it would . . . but they'd be in one anyway. Again, the president does not have constitutional authority to remove the legal limbo. That is already obvious, and it would be declared conclusively if the federal courts eventually had to rule on DACA. But Trump could say what he's reportedly going to say on Tuesday: He stands ready to work with Congress. Perhaps they could first work on temporary measures that would allow current DACA beneficiaries to work, attend school, and the like. Ultimately, they could work on a compromise that would confer legal status and eventual citizenship on the dreamers in exchange for security and economic improvements.
On the latter, Yuval rightly observes that there could be the makings of a deal on the wall Trump has dubiously vowed to build on the southern border. Like Yuval, I'd prefer something more substantive — he mentions E-Verify; I'd prefer to push on a piece or two of the Cotton-Perdue legislation, such as ending the diversity lottery or placing limits on chain migration (see Robert VerBruggen's excellent piece, here).
The important point, though, is that the weighing of accommodations for dreamers against improvements in the immigration system would be taking place where it is supposed to take place: on Capitol Hill. And while it is certainly true that dreamers are the most sympathetic subset of illegal aliens, it is also a fact that the issue of illegal immigration divides Washington from the nation at large like no other. If it became clear that Republicans were willing to compromise while Democrats were intransigent in hope of exploiting the dreamers as a 2018 campaign issue, I think that would go poorly for Democrats.
Commentary by Andrew McCarthy, a contributing editor at National Review. Follow him/her on Twitter .
For more insight from CNBC contributors, follow @CNBCopinion on Twitter.
©2017 National Review. Used with permission.