By Dave Gibson, November 13, 2019
This week, the U.S. Supreme Court is hearing arguments on the legality of ending the Deferred Action for Childhood Arrivals program (DACA). And according to most court observers, the deciding vote will likely rest upon the shoulders of Chief Justice John Roberts.
Of course, the so-called ‘conservative’ Roberts is the same justice who not only cast the deciding vote in favor of the ‘constitutionality’ of Obamacare, but actually changed the argument for the Obama Administration’s lawyer, when it looked as if the flagship agenda of Obama’s presidency would go down in flames … . So the jury is literally still out when it comes to the fate of Obama’s executive order giving about 800,000 illegal aliens, legal status in this country.
Oh, that’s right … DACA is not a law, as it was never passed by Congress, but simply an executive order. Therefore, it can be rescinded with another executive order … Right?
Actually, DACA was not even created by an executive order, but by an ‘executive branch memorandum.’
The Department of Homeland Security reports:
On June 15, 2012, then-Secretary of Homeland Security Janet Napolitano issued a memorandum entitled “Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children,” creating a non-congressionally authorized administrative program that permitted certain individuals who came to the United States as juveniles and meet several criteria—including lacking any current lawful immigration status—to request consideration of deferred action for a period of two years, subject to renewal, and eligibility for work authorization. This program became known as Deferred Action for Childhood Arrivals (DACA).
So, what’s the difference?
Unlike an executive order, an executive branch memorandum is not required to be published in the Federal Register, nor does it require the force of another executive order to reverse it. It merely takes another executive memo to dispose of it!
“Under an executive order signed by President John F. Kennedy, an executive order must cite the authority the president has to issue it. That could be the constitution, or a specific statute. Presidential memoranda have no such requirement … . An executive order can only be amended or rescinded by another executive order. A presidential memorandum can be changed with another memorandum,” wrote Gregory Korte in USA Today, in 2017. (It is worthy of note that Mr. Korte correctly cited the U.S. Code, in order to criticize President Trump.)
In conclusion, DACA, at least legally speaking, is as worthless as the paper upon which it was written, and has no place in any court, much less the nation’s highest.
Of course, you have never heard this before because we are now living in what will one day be referred to as the ‘post-fact era!’