As House Democrats vote Tuesday to stop President Trump’s emergency declaration on the southern border, congressional Republicans should ask themselves: Why is it that every other president is permitted by courts to exercise “executive discretion,” and yet Trump isn’t?
A New York Times report on Monday set up the scene for weak-willed Senate Republicans, writing that, “The [Democrat-controlled] House’s vote on a declaration of disapproval will force Republicans to choose between the congressional prerogative over federal spending established in the Constitution and a president determined to go around the legislative branch to secure funds for a border wall that Congress has refused to grant.”
This is, on its face, a false choice, though some in the GOP are stupidly buying into it.
Trump’s emergency declaration earlier this month does nothing more than free up little bits of money already allocated to the executive branch so that he can build more wall barriers on the border, stunting the overwhelming flood of illegal immigration from Latin America.
It’s every bit of a crisis today as it was when former President Barack Obama called it that in 2014, and the media happily played along. Trump’s official declaration only means he’s using his last option to address the issue.
This isn’t an choice between fidelity to the Constitution or blind loyalty to a president; though I’ll note the executive branch is part of that newly appreciated document, and Congress has already given the president the authority to do exactly what Trump is pursuing. This is a choice about relinquishing authority to Democrats to set immigration policy even while a Republican president is in office.
Obama made up his own law in 2012 that said nearly 1 million eligible illegal immigrants in the U.S. would not only be overlooked by law enforcement but could come out, declare themselves to the public, and receive indefinite legal protection.
Take for granted that the program was created out of compassion — plus Obama’s upcoming re-election — for young immigrants who may only know the U.S. as their home, but it should then also be taken for granted that if one president can dictate immigration policy within the authority Congress has given them, the same right belongs to every other president. Or, at the very least, every other president should be able to exercise power in moving to limit the influx of foreigners by erecting limited structures on the border.
Not so fast, says the U.S. Court of Appeals for the 9th Circuit!
The federal court ruled in November that the Trump administration could not end the Obama-era program with the argument that it was never legal to set it up in the first place. And yet, in the court’s unanimous opinion, it repeatedly acknowledged that the executive branch has the right to determine enforcement of immigration law by way of “executive discretion.”
Page 10: Obama’s Deferred Action for Childhood Arrivals “was a permissible exercise of executive discretion.”
Page 27: The Reagan administration “exercised executive discretion to defer the deportation of the minor children of non-citizens” and “extended voluntary departure, the mechanism through which these individuals were allowed to remain in the United States is, like deferred action, a creature of executive discretion.”
Page 69: “We therefore conclude that DACA was a permissible exercise of executive discretion.”
Who with a straight face could argue that it’s acceptable “executive discretion” for one president to carve out an exception for up to 1 million people not legally entitled residence in the U.S. but that it’s unconstitutional for another duly elected executive to eliminate that same exception? The 9th Circuit did it.
Now Trump’s emergency declaration is, as everyone knew it would be, tangled up in court. That order didn’t even affect anyone in the U.S., whether legally here or not. It did nothing more than cobble together funds available to the executive so that Trump might add on to the existing walls and barriers at the southern border, slowing down the drug dealers, human traffickers, and child molesters from Central America.
Skittish Republicans can keep this in mind when presented with the fake dilemma that they must either choose between the Constitution and the president. They can instead choose reality.