Some hawks think president should have waited for SCOTUS to rule executive amnesty unconstitutional

by Brendan Kirby | Updated 16 Jun 2017 at 12:22 PM

Thursdayís decision to rescind former President Barack Obamaís quasi-amnesty for millions of illegal immigrants short-circuits litigation that could have prevented a future administration from resurrecting it.

Obama created the Deferred Action for Parents of Americans (DAPA) program in 2014, but it never took effect because a federal judge in Texas blocked it, ruling that 26 states that sued were likely ultimately to win in court. The Supreme Court split 4-4 on the question last year, leaving the preliminary injunction in place while the litigants battled it out on the merits.

The decision to revoke Obama's executive order will end that case. While some immigration hawks cheered the move, others said it opens the door for a future administration to bring it back ó perhaps with a Supreme Court more favorably disposed to allowing it.

"It would be better for the Supreme Court to rule on it because it would apply nationwide," said Dale Wilcox, executive director and general counsel of the Immigration Reform Law Institute. "At least in the 5th Circuit [Court of Appeals], this will be in place, and hopefully this will be enough to prevent a future president from doing it."

Mark Krikorian, executive director of the Center for Immigration Studies, agreed. His organization had recommended that President Donald Trump, if he won the election, leave the order in place and let the litigation play out.

"I haven't heard any persuasive argument for why that's not the best approach," he said. "This does leave open the opportunity for a future Democratic president to grant amnesty."

Krikorian said he does not think it is a coincidence that the announcement comes on the heels of the administration's decision to leave in place Obama's Deferred Action for Childhood Arrivals, the executive order protecting illegal immigrants brought to America as children.

"They were starting to catch heat Ö This was almost a diversionary tactic," he said. "It just smells like a diversion."

But Wilcox, whose organization filed a friend-of-the-court brief on behalf of the plaintiffs in the Texas case, said it would have been problematic for the Trump administration to continue defending DAPA given the fact that the president repeatedly has declared it illegal.

"With that view, how could he continue to defend it? Ö He would have looked quite foolish," he said.

Chris Chmielenski, director of content and activism at NumbersUSA, said waiting for the Supreme Court to rule was one option.

"But there's some risk to that," he said. "What if the court doesn't rule in your favor? Then you have the exact opposite situation."

Trump, of course, still could have rescinded the executive order even after an unfavorable ruling from the high court. But Chmielenski said a bad precedent from the court would mean a future president inclined to bring it back would have no hesitation.

Chmielenski agreed that rescinding the order now is a way to mollify people upset over DACA. It carried little risk of a backlash since no one actually has received the benefit, he added.

"This could have been something they wanted to throw out to the base," he said. "And it's sort of low-hanging fruit."