Don’t let Trump hide behind the Constitution in ending DACA

Adam Cox and Cristina Rodríguez write: On Tuesday, the Trump administration formally announced its decision to end one of President Obama’s signature immigration accomplishments—the Deferred Action for Childhood Arrivals policy (DACA). Designed to protect Dreamers, that policy has insulated from deportation as many as 800,000 young people who were brought to the United States as children. Attorney General Jeff Sessions claims that the Obama Administration violated the Constitution when it decided, as a matter of prosecutorial discretion, not to deport Dreamers and instead to invest enforcement resources elsewhere. But Sessions’ position is both wrong and disingenuous. The Constitution’s Take Care Clause has never barred under-enforcement of the law. And Sessions knows that. Since assuming office he has spearheaded the under-enforcement of several laws. Dreamers simply don’t count in his and Trump’s books the way others do. That’s a policy choice. Not a constitutionally required one.

Jeff Sessions knows all too well that, when fulfilling the constitutional duty to enforce the law, administrations from both parties have historically had broad discretion to decide when and how the law should be enforced. This is true not just for immigration, but also with respect to criminal prosecutions, civil rights laws, and regulatory enforcement actions on matters as diverse as the environment, antitrust, and labor law. And it is not at all uncommon for the Department of Justice or other agencies to decide that enforcing the law against a particular group of people is neither just nor worth their limited time and resources.

In fact, Sessions himself has already announced radical shifts in enforcement priorities, particularly in the domain of civil rights. He no longer intends for the Justice Department to exercise supervisory authority over state and local police departments to ensure that they comply with basic civil rights laws. The Department appears to be looking for ways of abandoning consent decrees in school desegregation cases. And it almost certainly has no intention of enforcing the voting rights act in a rigorous fashion. [Continue reading…]

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