AG Sessions Forfeits to Texas on DACA

With the Justice Department not contesting Texas' lawsuit on DACA, this issue may be settled. But, what took so long?

Sessions photo by Gage Skidmore. No Endorsement. (https://creativecommons.org/licenses/by-sa/2.0/)

The Justice Department under Jeff Sessions has announced that it will not contest a Texas-led lawsuit challenging DACA. While many in Texas will greet this decision with enthusiasm, it was needlessly drawn-out, owing its conclusion more to the leadership of the states than from the White House.

The Deferred Action for Childhood Arrivals (or DACA) was an executive program of the last administration. After saying over 20 separate times that he didn’t have the executive authority to suspend immigration law, President Obama then proceeded to do just that, superseding his mandate as the President by granting mass-amnesty to a specified group of illegal immigrants.

This particular overreach of the now former President has long been a lightning rod for conservative and Republican attacks, and candidate Trump was no stranger to unleashing his own rhetorical strikes on DACA. In an October 2016 campaign rally, Donald Trump said that he would “immediately terminate President Obama’s two illegal executive amnesties, in which he defied federal law and the constitution to give amnesty to approximately 5 million illegal immigrants.” Those paying attention realize that President Trump, two years into his presidency, hasn’t remotely done anything as decisive as that.


The Trump administration’s relationship to DACA has been mostly a “Will he? Won’t he?” type scenario, as Trump vacillated between keeping some part of his election-year promise and appearing that he’d actually like the program to remain intact, avoiding the optics of seeming mean. It would’ve been an easy thing for the President to say that the program was illegal and end it, but instead Trump deliberated and sent mixed signals with comments on Dreamers such as, “They are here illegally. They shouldn’t be very worried. I do have a big heart. We’re going to take care of everybody.”

Finally, AG Sessions made his famous announcement, rightly calling DACA an “unconstitutional exercise of authority by the Executive Branch,” and stating that it would be rescinded effective March 5th, 2018. That should have been the end of it. However, Trump inserted himself back into the debate via Twitter, saying “Congress, get ready to do your job – DACA!” strongly implying he wanted Congress to legalize the program. Regardless of how you might characterize the President’s punting to Congress so that it could at least share blame if not take the lot, it certainly wasn’t the steeled leadership that Trump promised.

Since that time, there’s been a lot of debate, with Trump going back and forth a few more times. Ultimately, March 5th came and went, and nothing was settled about the program. Then came the lawsuit that challenged the authority of the program under the Constitution. The DOJ, likely eager to see an end to this particular burden, made a filing last Friday that asserted the department would not contest the litigants, saying that DACA is “’an open-ended circumvention of immigration laws.” With this filing, the matter would appear settled, unless Trump has yet another change of heart and again pursues some sort of amnesty.

Despite how one may feel about the purpose of DACA, the way that the Obama administration went about their goals was admittedly illegal. The program was only one of a string of unconstitutional actions, daily engaged in by Washington; it needed to go. At the same time, one shouldn’t praise the Trump administration too much for the demise of the program. While some may be eager to hold this event as a promise kept by Trump, if it is, it’s incidental, with the administration blundering on the right course rather than executing a deliberate plan. The Trump stance on this issue was all over the map, indecipherable to all but what friends and foes alike would prefer to project. Trump created a rhetorical environment where he would have seemed comfortable with DACA remaining or going. In the end, it took a passive Justice Department and the combined legal action of Texas, Alabama, Arkansas, Louisiana, Nebraska, South Carolina, and West Virginia to get any traction on this.

Rather than be at the indulgence of a disinterested administration, It would be far better for Texas to make its own law and immigration policy as an independent nation. Washington continually demonstrates it has no interest in making the hard choices, nor does it care or understand the concerns of Texans. It’s time we delete this superfluous level of government and rule ourselves. Today, Texas may have won. Yet, with Washington’s track record, tomorrow we may not be so fortunate.