Presidents' Pens and Phones Don't Work That Well

By Peggy Sands Orchowski

President Obama made the process famous, although Presidents Bush and Clinton used them too: executive memos, actions and memos.

"We're not just going to be waiting for legislation," President Obama said on January 14, 2014 as he convened his first Cabinet meeting of the year after losing the House majority to the Republicans.  "I've got a pen and I've got a phone and I can use that pen to sign executive orders and take administrative actions that can move the ball forward."

President Obama had already used an executive memo famously in June of 2012, supposedly to secure the "Latino vote" in his tightening re-election race. He ordered DACA – the Deferred Action for Childhood Arrivals prosecutorial discretion memo.  It advised the Department of Homeland Security's interior immigration enforcement arm ICE (Immigration and Customs Enforcement) that some illegal immigrants known as DREAMERS would be temporarily (two years with a two years extension) be deferred from deportation.  They also would be given a temporary work permit.  It did not confer legal status.

DREAMERS were defined in unpassed DREAM Act legislation since 2007 as illegal immigrants between the ages of 18 and 30 who had "come in the U.S. before the age of 16".  In addition they had to have been in the country at least five years, graduated from high school or an equivalent, had not been convicted of a felony and were illegally in the country at the time of application. About 800,000 individuals of the some two million initially thought to be qualified (and the 11 million total illegal immigrants), actually applied.

In 2017, President Trump ordered that the DACA order be rescinded, beginning March 5, 2018   He had campaigned on the promise to rescind many of Obama's actions done with his pen and a phone. 

But it's not that he's against executive actions.  On the contrary, President Trump has done even more – including one exploring the possibility of ordering certain gun controls.  In January 2018, Aaron Blake for the Washington Post's Fix wrote "President Trump has turned 'a pen and a phone' into a pen and a megaphone. Thanks, Obama?

I have been covering immigration law making and politics in Congress – the exclusive sausage factory for federal law-making - for over ten years and have written two books about executive actions.

But in the last few weeks the process took on a new twist.  The DACA order reached the third branch of government: the judiciary. After Congress shut down government briefly over the failure to come to a decision over DACA, federal judges in California and New York demanded the order to rescind DACA be halted. 

There is really no dispute that executive orders, actions and memos are not laws. They were not passed through the Congressional legislative process.  They are orders from the executive to his executive secretaries. There really isn't much question that an order can be rescinded.  But the judges claimed the rescission was "arbitrary and capricious". They felt there was no compelling reason to stop suddenly end by March 5 all temporary protection and work permits for hundreds of thousands of millennial illegal immigrants.

President Trump tried to go around the whole judicial appeal process by taking the case directly to the Supreme Court.    Today Feb. 26 the Supreme Court voted unanimously that it was too early for them to consider the case.  The President had to go through the judicial appeal process.

It's a good turn.  Congressional negotiations have been healthy if not hairy.  Good options across the spectrum have been proposed. There is some bipartisanship.

Some DACA may be happy about it. While some Democrats have proposed that DACA be extended for another three years, most DREAMERS want Congress to establish for them a permanent legal status as soon as possible.  In the meantime their protections will continue.  While the court ruled there can be no new applications, those whose permits about to expire can even apply for short term extensions.

The rule of law and the codified workings of our three branches of government are being upheld. 

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