This was blatantly unconstitutional and maybe now it will get another look.
What started as a textbook example of executive lawmaking by fiat that turned into a textbook case of results-oriented judicial rulings is now headed to the Supreme Court.
Of course, I’m talking about the Deferred Action for Childhood Arrivals, or DACA, program.
The executive lawmaking by fiat took place in 2012 when President Obama basically gave the finger to Congress and announced that he was going to contravene black letter law and exempted some illegal aliens from being eligible for deportation.
The method he used for this was not an Executive Order or the APA rule-making process, it was established by a memo former DHS Secretary Janet Napolitano sent out to her field staff directing them to not deport illegal aliens who allege that they were brought to the US as children. That’s it. That was the depth of the analysis and consultation. A. Memo. A similar program, Deferred Action for Parents of Americans, was ruled unconstitutional by a federal appeals court which should have been a hint that it wasn’t on the up-and-up. But when Jeff Sessions got around to pulling the plug on DACA, lawfare ensued and the administration was told it could not rescind the Napolitano memo.