A Sweeping Senatorial Display of Hypocrisy and Self-Nullification

By Dan Cadman on July 31, 2017

In a sweeping display of hypocrisy served with heaping helpings of hockey puck and chutzpah, a group of Democratic senators has sent a letter to President Trump urging him to take a legal stand in favor of the DACA program.

They wrote because, faced with threat of a lawsuit from a consortium of states led by Texas, this administration has indicated that it is considering simply not defending DACA in court. In their letter, the members say, in part, "If this threat is successful, it would undermine your ability to set immigration policy for your administration," and "We urge you to respond to this threat to your executive authority by urging the Attorney General to use all legal options to defend the DACA program."

Wait. Isn't it the Democratic party that has encouraged and applauded lawsuits to impede this president's power to suspend visas and the refugee program? And his power to withhold federal money from sanctuary jurisdictions? It is.

The willful selectivity exercised by these senators in supporting presidential power is the stuff of bad late-night comedy. They also seem to have forgotten that there is precedent for simply declining to defend a federal activity in court. Isn't that what Democratic President Barack Obama declared that he would do with the federal Defense of Marriage Act once he personally decided that he was no longer opposed to gay marriage?

The letter is also a hilarious act of self-nullification. Readers will recall that, unlike the power to suspend visas, which is clearly embedded in law at section 212(f) of the Immigration and Nationality Act, DACA — the administrative "Dreamers" program of the Obama White House — was the equivalent of an imperial decree, issued without any statutory foundation whatsoever when that administration realized that there was no law, no law whatsoever, to cover the president's desire to grant amnesty to hundreds of thousands of aliens living illegally in the country. (See here for various Center for Immigration Studies publications and blogs covering DACA.)

So, despite the very clear separation of powers embedded in the U.S. Constitution, which gives lawmaking powers only to Congress under Article I, President Obama and his advisors simply made DACA up out of whole cloth. Apparently the good senators are fine with such a breathtaking usurpation of their constitutional authority and role so long as it serves their political goals.

It is only when a president of the other party strays from their agenda that they pull out the stops, Constitution and law be damned. No wonder our Congress is held in such low public esteem these days.