Below is my column in the Hill Newspaper on why the legal challenge filed against the Trump Administration byNew York Attorney General Eric Schneiderman (left) and others over the rescinding of DACA.  As discussed in the article, I have been a long critic of the executive orders issued by President Barack Obama to achieved unilaterally what he failed to achieve legislatively.  Notably, Sen. Dianne Feinstein (D-CA) has acknowledged that DACA was on shaky legal ground. Notably, CNN host Chris Cuomo observed:

“There’s no question it’s been legally dubious from jump,” Cuomo said at the end of their conversation. “Nobody’s going to argue with that in a very compelling fashion. At least not this morning, but it’s also about what are you going to do for these people. This is a moral argument, not just a legal one.”

However, it is a dangerous thing to take moral exemptions from the constitutional process because it leaves the question of who decides which issues will be given a constitutional pass.  This is an argument that can be made to the legislature but it is important to maintain the clear lines of separation between the branches in the creation of new legislation.  DACA was a legislative act done by executive order in my view.

Given the intense political dynamic that led to the issuing of the DACA order, the courts will be necessarily leery of a violation of the political question doctrine in being asked to intervene.  The Complaint does contain a couple claims that a court could find compelling but these claims are at most likely to delay rather than prevent deportations. However, as I discuss, complaints like people are often painted by first impressions and the first impression in this complaint (which starts with an ill-supported equal protection claim) is not flattering.

Here is the column:

Continue reading “The Law Of Bad First Impressions: The DACA Challenge Is Long On Rhetoric And Short On Law” →