In 2012, then-President Barack Obama utilized his executive authority to direct the Department of Homeland Security to change its strategy for enforcing immigration law. He instructed the agency to "exercise prosecutorial discretion" and defer legal action against people who immigrated to the country illegally as children. What later became known as Deferred Action for Childhood Arrivals, or DACA, began as a simple executive agency policy change.
The effort came out of a desire to offer those who had not willfully violated the law—since such immigrants were presumably brought to the country by their parents—an opportunity to remain in the country. Because Mr. Obama pursued this objective through a change of departmental rules, though, DACA has never offered a path to citizenship for these immigrants. Instead, all that it can and has provided is a stay of action, allowing otherwise non-criminal individuals who meet the criteria a veil of protection against deportation or other measures.
When President Donald Trump took office, he, as promised on the campaign trail, directed the Department to abandon Mr. Obama's 2012 instruction. Arrests and deportation proceedings recommenced for these previously protected immigrants. Such a turn of events was to be expected, if Republicans ever won the White House, as long as this protection was offered merely through departmental discretion and failed to offer a path to legal citizenship.
If Congress had been able to pass similar legislation into law, however, such arbitrary and abrupt policy changes could have been avoided. Congress has not been able, however, to enact pathway-to-citizenship legislation, despite multiple attempts over the past two decades. As a result, we are watching the judicial and executive branches battle over policy decisions which ought to be handled by the legislature.
Many Americans have become accustomed to formulaic headlines not unlike the one you read above. "Judge Rules Executive Action Illegal." "President Issues Executive Action to Address Demand." Both are routine today, and both are symptoms of a grave illness in American democracy. Democracy is far from its best when an executive with discretion over application and judges with discretion over interpretation shape the law to a greater extent than do the legislators meant to write and rewrite it according to democratic demands.
As long as polarization continues to hobble Congress, warping legislative procedures into insurmountable roadblocks that make meaningful policy action impossible, the sickness will remain. The application and shape of American law will grow more distorted, unpredictable, and dependent on the will of a few rather than the many, until America's legislative branch puts itself in order and quits deferring so many important decisions.
Further, it must be observed that the system of American democracy was and remains designed around the concept of checks and balances, in which each branch of government is meant to seek to prevent others from usurping its own power. Today, America's legislators continue to compete among themselves, while neglecting their duty to hold the judicial and executive branches in check. If this continues, it will not only distort the law but enlarge the power of the Presidency as well. Today, no other path to the graveyard is more common for democracies than legislatures allowing an individual executive to accumulate discretionary power and undermine the processes of deliberative and democratic lawmaking.
The current and terribly unfortunate row over DACA is not just a reminder of the myriad deficiencies of our immigration policy. It is a reminder of the myriad deficiencies in our health as a democracy.
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