ICYMI: DACA Goes To The Supreme Court

“[The President] shall take Care that the Laws be faithfully executed….”

The United States Constitution: ARTICLE II, SECTION 3

There are a few other things going on besides impeachment. An example, the challenges to President Trump’s roll back of President Obama’s Deferred Action for Childhood Arrivals (DACA) got debated at the Supreme Court on November 12th.

While lawyers talked and justices asked questions, people demonstrated outside in support of President Obama’s 2012 executive order suspending deportations for an estimated 700,000 people who have been in the United States illegally since they were children.

All the talk inside the Court generated 92 pages of transcript (which you can read here) and an index of words they used that added ten more pages.[1] All that talking was about the constitutional authority of President Trump to issue an order to undo an order issued by President Obama, but no lawyer or justice talked about the Constitution.

The Lawyers All Agree: President Trump Has the Authority

Strangely enough, lawyers on both sides of the cases agreed that the Trump Administration had the authority to rescind the order of the Obama Administration. Makes you wonder why they were there. Kind of like watching the “impeachment” hearings.

During his time to talk, United States Solicitor General Noel Francisco focused on President Trump’s authority to overturn Obama’s order. The principal reason Francisco gave was that Obama’s order was illegal in the first place. Francisco mentioned in passing that there were other policy reasons. Seemed to miss the obvious though, a president can use an executive order to undo a prior executive order.

When Francisco’s time was up, Theodore Olson got his chance to talk. Olson represented the National Association for the Advancement of Colored People (NAACP) and private DACA beneficiaries. This astounding exchange with Justice Kavanaugh demonstrates a great legal mind at work:

JUSTICE KAVANAUGH: Do you agree that the executive has the legal authority to rescind DACA?

OLSON: Yes. (see the Transcript, pg. 61, lines 12-18)

Olson’s answer would have been a good time for everyone to close their binders, pack their brief cases and call it a day. However, another lawyer still had a turn to talk, California Solicitor General Michael J. Mongan.

The Absurd California Argument: It Must Be Enforced Because It’s Illegal

Mr. Mongan took the talking to a very strange place. He said Trump’s order was wrong because it relied on Attorney General Sessions’ opinion that DACA was illegal. Mongan suggested the Supreme Court send the matter back to the Department of Homeland Security to get a better reason than Obama’s order was illegal.

Even Chief Justice Roberts was skeptical of Mongan’s thinking:

CHIEF JUSTICE ROBERTS: –for him (AG Sessions) to say, look, I’ve got a decision from the Fifth Circuit that tells me this is illegal, it’s been affirmed by the Supreme Court by an equally divided vote? That’s enough for me… (see the Transcript page 78, lines 9-14)

Justice Breyer referred derisively to Mongan’s suggestion as “ping pong” that would bounce the question around between the courts and the DHS.

The Demonstrators Need to Confront Congress

It was clear during all this talking that President Obama, despite stating many times he did not have the authority to issue the DACA orders, did it anyway. Obama ordered a law enforcement agency, the Department of Homeland Security, to not enforce the law, in direct violation of Article II, Section 3 of the Constitution. [2]

The Supreme Court won’t need to address Obama’s violation to decide the case. The Court can write a single sentence decision: “An executive order can be rescinded by another executive order.” Of course, they won’t, it will be necessary to kill a few trees and sound really important.

The DACA demonstrators outside the Supreme Court, would have better spent their time by going to the Senate and House offices buildings. That is where the authority and responsibility to address their plight lies.[3]

Abraham Lincoln on The Law

Early in his career, Abraham Lincoln addressed the importance of following the law and the disrespect to our forebears ignoring the law demonstrates:

“Let every American, every lover of liberty, every well-wisher to his posterity, swear by the blood of the Revolution, never to violate in the least particular, the laws of the country; and never to tolerate their violation by others. As the patriots of seventy-six did to the support of the Declaration of Independence, so to the support of the Constitution and Laws, let every American pledge his life, his property, and his sacred honor;—let every man remember that to violate the law, is to trample on the blood of his father, and to tear the character of his own, and his children’s liberty.

Let reverence for the laws, be breathed by every American mother, to the lisping babe, that prattles on her lap—let it be taught in schools, in seminaries, and in colleges; let it be written in Primers, spelling books, and in Almanacs;—let it be preached from the pulpit, proclaimed in legislative halls, and enforced in courts of justice.”

Failing to Listen to Lincoln

We have failed to follow Lincoln’s advice and our Supreme Court is tied up with the absurd. Had Americans been taught the basics they would have understood what President Obama stated many times: he didn’t have the authority. They would likely understand as well that one executive order can undo a previous executive order.

Demonstrators would not be demonstrating the wrong place.

We are in this situation because we have not listened to Lincoln, but rather have been infected by Woodrow Wilson who on July 4, 1914 declared the Declaration of Independence a nullity.

We are in a dangerous world when “lawyers” discuss the constitutional authority of the president before the Supreme Court and not mention the Constitution.


[1] Of note in the index: While the oral arguments centered around the executive branch discretionary authority and limits on the Supreme Court to review such decisions, the word “constitution” was uttered only once. The lawyers and learned justices discussed Supreme Court opinions and the plight of Dreamers. The answer was always in the Constitution’s Art. II, Section 3, which no one thought to mention.

[2] For a detailed discussion of the DACA order, Obama’s admission that he did not have the authority to issue the orders, and the mandatory language of the statute that he ignored, see:  ICE Agent Lawsuit Asserts Obama Dream Act Policy Is Illegal

[3] Though the House is too tied up with impeachment to consider laws that might benefit America.


For Further Reading