Free Minds & Free Markets

Trump Administration Rescinds Obama's DAPA Immigration Order

DAPA proved particularly controversial among libertarian legal scholars.

Late Thursday Secretary of Homeland Security John Kelly announced he was rescinding an Obama-era immigration memorandum staying the deportation of undocumented immigrants whose children are American citizens.

Deferred Action for Parents of Americans and Lawful Permanent Residents, or DAPA, never went into effect but was a target of President Trump, who promised as a candidate to revoke it as part of his broader goal of cracking down on illegal immigration.

DAPA spawned an intense legal controversy in the libertarian legal community as well as dividing the normal cast of immigration advocates and border hawks.

President Barak Obama issued his memo in November 2014, promising temporary legal status to some 4 million undocumented immigrants to allow them to get work authorizations and state benefits.

Almost immediately, 26 state attorneys general challenged DAPA, calling it an overreach of executive power and a dereliction of the president's constitutional duty to enforce laws passed by Congress.

A Texas judge agreed with them, blocking the order from being implemented in February 2015, which ultimately sent the case to the Supreme Court.

Cato constitutional scholar Ilya Shapiro argued in an April 2016 piece for Reason that DAPA directly contradicted current immigration statutes and should be struck down.

"In our constitutional architecture, executive action based on Congress's resistance to the president's agenda has no place," Shapiro wrote. "Countermanding congressional enactments is the epitome of a violation of the president's constitutional duty to 'take care that the laws be faithfully executed.'"

Another libertarian legal scholar, George Mason law professor Ilya Somin countered Shapiro in another Reason piece, contending the immigration statutes themselves were unconstitutional.

"The detailed list of congressional powers in Article I of the Constitution does not include any general power to restrict migration," Somin wrote. "The Naturalization Clause gives Congress the power to establish a 'uniform Rule of Naturalization.' But it does not grant any authority over migration."

Somin framed his argument as one of constitutional originalism. Without a specific grant, Congress lacks the power to regulate migration to the United States. Thus, DAPA's deferral of deportations merely prevents unconstitutional deportations from occurring in the first place.

The Supreme Court was just as divided as the libertarian community on the question of DAPA, with a 4-4 split decision that kept the Texas injunction in place. Kelly's action effectively ends the policy limbo.

Reactions from right and left have been fairly typical.

Tom Jawetz, Vice President for Immigration Policy at the left-wing Center for American Progress, called the decision "disappointing" and representative of the administration's "misguided zeal to deport as many people as possible."

On the right, Tom Fitton of Judicial Watch said on Twitter,"the restoration of our republican form of government advances" while he called on Trump to go further and "end lawless Dreamer amnesty for illegal alien children and adults."

For a more in-depth look at the libertarian legal arguments for and against DAPA, check out this video, featuring the battling Ilyas.

Photo Credit: DHS/Wikimedia Commons

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  • Diane Reynolds (Paul.)||

    Whether you agree with the intent of DAPA or not, it's what you get when your country of 330,000,000 people is guided by stuff printed on an HP LaserJet III and signed by some guy.

  • Unicorn Abattoir||

    Live by the memo, die by the memo.

  • Diane Reynolds (Paul.)||

    People may think it's a flip comment, but it really is the consequence of running your entire federal apparatus this way. That which is hastily implemented undemocratically can be hastily unimplemented undemocratically.

    Or shorter: -1 Paris Climate Agreement.

  • Unicorn Abattoir||

    Exactly. Unfortunately, politicians have a short memory when it comes to cautionary tales.

  • buybuydandavis||

    Progressivism is arbitrary rule by unelected apparatchiks

  • pan fried wylie||

    c.2005 when my employer decided to relocate, they weren't interested in keeping anything old. I got to take home the already thoroughly-yellowed Laserjet III from my desk, and continued to use it till 2010 when a mouse took up residence and peed all over the sensors.


  • Scarecrow Repair & Chippering||

    More broadly speaking, it's what happens when you have a coercive monopolistic government, and then let it fester for centuries. All bureaucracies expand over time, and when it has no market accountability, bankruptcy can't clear ot from the ecosystem and it never removes the deadwood.

  • SIV||

    DAPA spawned an intense legal controversy in the libertarian legal community


  • Hank Phillips||

    I have not seen any convincing argument for Congress having authority to meddle in migration, but am aware of security exigencies and atrocities of past wars of the pre-nuclear era--including the "Commando order" and lynching of downed US pilots examined at Nuremberg. Also, I clearly recall the Declaration of Independence listing on its bill of particulars complaints of the King interfering with migration to America. H.L. Mencken's translation of that document into the vernacular preserves that complaint--with emphasis of importance that was not widely understood until Christian National Socialism transformed Germany into an altruistic genocide machine. By May of 1945, Jewish immigrants at Los Alamos had ensured These States would soon defeat both the German and Japanese dictatorships. Has anyone asked Jon Roland over at constitutionalism.blogspot about this issue?


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