Law360 Turns to “Presidential Power and Its Limits” Professors, with Executive Power Interests at Stake Following DACA Lawsuit

Monday, May 21, 2018

Law 360
States Face Uphill Battle To Dismantle DACA
May 2, 2018

Following the filing of a lawsuit from seven states against the federal government, claiming the creation of the Deferred Action for Childhood Arrivals (DACA) program was unlawful and should be ended, Law 360 turned to University of Arizona Law’s David Marcus and Toni Massaro, who recently concluded their class, “Presidential Power and Its Limits.”

From the Law 360 article:
The complaint asserts that the Obama administration violated the Administrative Procedure Act in creating DACA without providing notice and opportunity for public comment and acting in a way that was “short of statutory right.”

However, David Marcus, a professor at the University of Arizona's James E. Rogers College of Law, said that the Obama administration rationalized the DACA program as an extension of the executive branch’s prosecutorial discretion over immigration enforcement as defined the INA. The statute explicitly says that it does not limit the Secretary of Homeland Security or the Attorney General’s power to “grant a stay of removal or deportation” in an immigration case.

The lawsuit also alleges that DACA violates the constitution, specifically the take care clause, “which requires that the president "take care that the laws be faithfully executed," noting how Congress has failed to pass legislation to make DACA permanent.

Marcus argues Congress has not provided enough funding to immigration enforcement for the law to be prosecuted to its fullest extent, “meaning that the president must determine how to prioritize and deploy scarce resources.”

Masaro says President Trump will likely defend the former presidents use of executive power in creating the DACA program, or risk undermining his own.

“The president would be inclined to defend broad interpretations of presidential power to support his own actions — which clearly test those boundaries,” Masaro said. “He would stand to lose if a ruling on this DACA issue led to more meaningful restraints on presidential power.”

Read the full article at Law 360.