Why Trump's DACA Decision Defies All Norms

Below is an excerpt of a piece that appears on our Foreign Policy feed. To read the full article, visit Lawfare@FP.

The whiplash is not limited to the executive branch.Congress, which has had every opportunity to enact the Dream Act, or similar legislation to provide a permanent legal status for the Dreamers, has done nothing for five years. (I have long argued that DAPA is unconstitutional, in large part, based on DACA’s unconstitutionality, but support the enactment of the Dream Act.) Yet, those bills have gone nowhere. Because Trump has suddenly pulled the rug — or maybe pulled the rug for six months, perhaps to reinstall shag carpeting later — there is some movement on Capitol Hill to address this problem through bicameralism and presentment. Will it pass now? Who knows. What is certain is that the use of executive action in the past made that process less likely, and not more likely. One of the most harmful consequences of Obama’s pen-and-phone governance was that it allowed legislators to skirt difficult votes. Can’t muster the votes for the Dream Act? Issue DACA. The Gang of Eight bill failed? Sign DAPA. Congress won’t provide funding for the cost-sharing reduction subsidies under the Affordable Care Act? Pay it anyway. And so on. Now, Congress has an ultimatum — protect the Dreamers, or they will be subject to deportation.

Tragically, caught amid this whiplash are the 800,000 DACA beneficiaries whose fate hangs in the whims of the president’s latest tweet. To that end, perhaps the most inexplicable aspect of this entire project is the manner in which this policy is being wound down. Even after Trump took office, his administration continued to accept DACA applications, urging the Dreamers to come out of the proverbial shadows. Now, these very people who identified themselves to this government will soon lose their lawful presence. The time to rescind this policy was on the first day of the administration, not seven months later, after Texas’s ultimatum. This decision is yet another illustration of what Benjamin Wittes referred to as “malevolence tempered by incompetence.”