The Trump administration anticipates a victory in the Supreme Court to end the Deferred Action for Childhood Arrivals program, the nation’s No. 2 homeland security official said Wednesday.
“We have all the usual judicial challenges. You see judges trying to get in the way of what we are doing all the time,” Ken Cuccinelli, acting deputy secretary of the Department of Homeland Security, said during a webinar sponsored by The Heritage Foundation.
Cuccinelli was referring to lower court rulings protecting the 2012 executive actions by the Obama administration to shield from deportation some 700,000 illegal immigrants who originally entered the country as minors.
The existing DACA program would be phased out, Cuccinelli said.
“Any day now, we are prepared to implement that,” he said. “We fully expect to win that case, which will mean that the president’s wind-down of DACA can take place.”
Cuccinelli also talked about state and local sanctuary policies and many other immigration-related issues during the online forum.
But the Supreme Court’s pending decision on DACA was a paramount focus.
“If I remember correctly, this is the longest that the Roberts court has ever gone from oral arguments to the issuance of an opinion,” Cuccinelli said of the high court under Chief Justice John Roberts.
“So they are obviously waiting to drop it with the controversial ones at the end of the term,” he said. “It is unimaginable there could be any other outcome than upholding the president’s authority.”
The nine justices heard arguments over DACA in November.
Cuccinelli said the Obama administration’s Department of Homeland Security did not legally implement DACA. He said the Trump administration operates differently than its predecessor.
“What people can do for work permits and who qualifies for them, those sorts of questions are part of the DACA question,” the deputy homeland security secretary said. “There we are talking about 600,000 or 700,0000 people—all in a swipe with the former president’s pen and a phone. That isn’t how we do things in the Trump administration. We do them by the book, and we do them within the boundaries of the law.”
Hans von Spakovsky, senior legal fellow at The Heritage Foundation and a former Justice Department lawyer, said he also anticipates the high court will side with the Trump administration.
“The only entity in the federal government that has the authority under the Constitution to determine who can be in the United States legally is Congress, not the president of the United States, unless that authority is granted to him,” von Spakovsky said during the online forum.
“One of the authorities that is not granted to the president is to determine that individuals who come into the country illegally are suddenly made legal, are given an amnesty, and are provided with government benefits such as work permits,” he said. “Yet that is exactly what President [Barack] Obama did when he started the DACA program.”
Von Spakovsky added:
This is a program that started what amounted to an amnesty for minors up to the age of 16. It also provided them not just with a promise they cannot be removed from the United States, but with government benefits such as a work permit.
President Trump ended this program, giving a six-month lead time in order to give Congress time to make a determination whether they wanted to pass legislation to put in place some kind of DACA program.
Congress did not do that. Again, the president’s actions were challenged. Nationwide injunctions were issued. We’ll hear from the Supreme Court on this. I have a serious problem thinking they are not going to come to any conclusion other than one president with an executive order can certainly end a program that was established by the executive order of a prior president.
Executive orders are not federal law and can be withdrawn at any time by a president. The nationwide injunctions that were issued had no basis in law by the judges who issued them.
Cuccinelli also said the Trump administration is looking at alternatives to address sanctuary jurisdictions, which are state and local governments with policies of not cooperating with federal immigration officials.
The state of New York passed a green light law that prohibits the Department of Motor Vehicles from sharing information with immigration agencies.
“We have already taken some actions with New York state, which has gone further than anybody else to block our immigration law enforcement,” Cuccinelli said. “We are looking at all sorts of other alternatives we can do there. Stay tuned.”
He compared obstruction efforts by sanctuary jurisdictions to the lack of information-sharing that plagued law enforcement before the 9/11 attacks.
“One of the things we learned sort of looking back after the fact was that the government wasn’t sharing law enforcement information readily enough,” Cuccinelli said. “Here we have the state of New York intentionally cutting off exactly that information.”
The New York state law has been one of the most egregious situations for immigration enforcement, said Lora Ries, senior research fellow for homeland security at The Heritage Foundation.
Ries said the law made a bad situation worse by making it a felony for DMV workers to share information with federal law enforcement agencies.
“That is just unheard of, it is dangerous, and several New York agencies’ law enforcement officers came out in opposition to this green light law,” Ries said. “Now that it’s a felony, it’s even worse, and it returns New York to a pre-9/11 posture.”
