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PARR: Ruling shows checks and balances are out of whack

January 19, 2018

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For those who hoped the new year might bring with it a renewed sense of normalcy in politics, that, unfortunately, is not the case—at least not with respect to our constitutional scheme of checks and balances and separation of powers.

James Madison and other Federalists believed the best way to restrain the use of government power, particularly by overzealous majorities, was to pit it against itself. Federalist 51 used the phrase, “Ambition must be made to counteract ambition.” After all, as Madison would go on to say in that same essay, “If men were angels, no government would be necessary.”

Which, of course, is why the Founders set up the system they did: Each branch would have certain powers that were explicitly the prerogative of that branch, and some powers that would also reach out and restrain the other two branches (think the executive’s veto, legislature’s power of the purse, and the Supreme Court’s power of judicial review—though the last one came a little later than the first two). At least, that’s how it was supposed to work.

But sometimes things happen that can make someone reasonably question if the system still works. Or maybe better said, it might very well be that the system is working, just that it takes a while. For instance, Judge William Alsup, of the U.S. District Court for the Northern District of California, recently ruled that the Trump administration must restart DACA, the Deferred Action of Childhood Arrivals program instituted in 2012 by then-President Obama.

For those who might have been focused on things other than immigration policy in the intervening six years, Obama started DACA (just a few months before the 2012 presidential election) in part because Congress had come to an impasse on the Dream Act. Under DACA, the Department of Homeland Security would not commence deportation proceedings against those who entered the United States before age 16, were no older than 30, lived here for at least five years, and were in school or had graduated high school or were military veterans.

Most estimates suggest around 800,000 undocumented immigrants were beneficiaries of DACA. Then in September, President Trump ended DACA, though he gave Congress six months to get its act together before he would fully rescind the program.

Or, at least that’s what was supposed to happen, until Judge Alsup decided the new administration, through DHS, could not end a program the previous administration (via the exact same department) started—notwithstanding Obama’s assurances that DACA was “temporary” and “not a permanent fix,” which might make one think that, at some point, DACA could be ended. Evidently, that’s not how things work now.

Ironically, Alsup also noted, in response to the Trump administration’s contention that DACA was illegally put in place in 2012, that the Homeland Security secretary has long been empowered to issue the sort of protections permitted under DACA. But, apparently, the secretary is not able to end that very same program.

What one thinks of DACA or our (broken) immigration system is irrelevant. It might well be that the Supreme Court rights the separation-of-powers and checks-and-balances ship when this issue finally makes its way to the nation’s highest court—because counting on the 9th Circuit to do so is laughable.•

Click here for more Forefront columns.

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Parr is a student at the Indiana University Robert H. McKinney School of Law in Indianapolis and is treasurer of the Indiana Young Republicans.Send comments to ibjedit@ibj.com.

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