Editor’s note: Elie Honig is a senior legal analyst at CNN and a former federal and state prosecutor and author of “Hatchet Man: How Bill Barr Cracked the Attorney General’s Code and Corrupted the Department.” The opinions expressed here are yours. See more opinions here.
(CNN) — When federal judge Andrew Hanen ruled on Friday that the Deferred Action for Childhood Arrivals (DACA) program is unconstitutional, he cast doubt on the future of the Obama-era initiative that protects arriving undocumented immigrants from deportation. to the United States when they were children.
The future of DACA now rests with the federal appeals courts. And the legal outlook is not promising for the program’s survival, unless Congress steps in to rescue it.
If DACA, created through executive action by then-President Barack Obama in 2012, falls, the result will be potentially catastrophic for hundreds of thousands of innocent young beneficiaries, commonly known as “dreamers.” DACA protects about 700,000 undocumented immigrants who came to the United States before the age of 16.
Without the protections of DACA, these youth will be subject to deportation, even if they have not committed any crimes and have done nothing wrong. Even former President Donald Trump, whose administration tried unsuccessfully to repeal DACA, has described those protected by DACA as “good, educated and accomplished young men.”
The Court’s ruling in favor of DACA can change
Last year, DACA survived an existential legal challenge. It was when the Supreme Court, by a majority of five to four, rejected the Trump administration’s effort to repeal the executive action that created the program.
The Court ruled that while a president generally has broad authority to modify or repeal the executive actions of a previous president, such action must still comply with certain administrative procedures. The Court found that the Trump administration did not follow these guidelines because it never offered a “reasoned explanation for its action.”
But the 2020 Supreme Court opinion should provide little comfort to those who rely on DACA protections. First, last week’s ruling must pass through the Intermediate Fifth Circuit Court of Appeals, which is one of the most conservative (possibly the most conservative) federal appeals courts in the country.
If the Fifth Circuit upholds last week’s decision to overturn DACA and the Supreme Court refuses to hear the case (and the Court refuses to hear far more cases than it accepts), then DACA is lost.
Second, the 2020 case presented a different legal problem. That case involved the authority of a president to undo the executive action of a predecessor. The new case, meanwhile, involves the underlying constitutionality of DACA itself. Judge Hanen ruled that DACA is unconstitutional because it was created by executive action rather than legislation.
Third, since the 2020 opinion that it (barely) upheld DACA, Judge Ruth Bader Ginsburg has been replaced by Judge Amy Coney Barrett. In the 2020 decision, Ginsburg sided with the other three liberal justices plus Chief Justice John Roberts. If Barrett sticks with his Tory colleagues on the bench, last year’s 5-4 win for DACA would turn into a 5-4 loss.
The option of Congress
But all is not lost for DACA, yet. Congress has the power to step in and save the program by passing legislation that codifies it as federal law. President Joe Biden called Friday’s decision “deeply disappointing.” And Biden’s fellow Democrats have majorities in both the Senate and the House.
But the real question is whether Democrats are willing to act to match their party’s rhetoric. It is one thing to expose the possible end of DACA in the press clippings, but it is another to exercise the political will necessary to save it. It is unclear whether Democrats are willing to act, even limiting or ending the filibuster. That would require at least 60 votes, the 50 Democrats plus at least 10 Republicans, to pass the legislation.
Now, your questions:
Fran (Arizona): Can the Justice Department step in and end the so-called “audit” of votes cast in Arizona in the 2020 election?
The Justice Department has notified Arizona authorities that it is aware of the alleged “audit” and will monitor possible violations of federal law. Specifically, the DOJ warned Arizona officials about possible voter intimidation and repression. Also on possible violations of federal law that require state and local officials to maintain custody of the ballots for 22 months after an election. To date, the dispute has not reached a critical point. But, if necessary, the Justice Department could go to court to seek to limit or close the ongoing Arizona “audit.”
Alberto (Florida): If prosecutors can’t get anyone within the Trump Organization to cooperate, can they still press charges against Donald Trump?
I am skeptical whether New York prosecutors can develop sufficient evidence to indict former President Trump without the cooperation of members of the Trump Organization. So far, efforts by prosecutors to change the Trump Organization’s chief financial officer, Allen Weisselberg, and chief operating officer, Matthew Calamari, have been unsuccessful. That could change; I have seen many people cooperate later in the process, particularly after being charged or convicted. But at the moment, it appears that prosecutors are not counting on the cooperation of these informants.
Note that it is not enough for prosecutors to argue that fraud occurred within the Trump Organization, therefore bosses must be held accountable. That could be logical, and it could even be true, but prosecutors must be able to prove specifically and beyond reasonable doubt that a person knew of and participated in a criminal scheme.
Unless prosecutors have compelling evidence that we are not currently aware of (an email, text message, or incriminating recording, for example), they will need a well-positioned collaborator to provide the necessary evidence.