In Congressional Intransigence and Executive Power, I place the President’s decision to enforce DACA after the Senate explicitly did not pass it outside the three tiers of Youngstown. Here, we have a case where the President is relying on some sort of inherent executive power where Congress–the body who passes immigration laws–expressly declined to do exactly what the President wanted. Here the President has the weakest claim to executive power.

Rep. Luis Gutierrez said that American’s approved of DACA, as evidenced by the presidential election. (I don’t have an exact quote, only this tweet which I’ve seen reported in a few places). I don’t think Gutierrez attempted to make a serious constitutional argument, but I’ll take him up on it. So is that right? Does the re-election of the President reaffirm his executive actions?

I think the answer has to be. Congress, the body charged with immigration laws, continues to be opposed to the existing DACA regime, and dead set at stopping an expansion of DACA. The current kerfuffle in the House over attempting to stop DACA seems like evidence that Congress still has not ratified DACA.

Also, to the extent that we look at public opinion polling, the President’s numbers are tanking with respect to immigration.

Update: The House voted to stop the President’s DACA policy.

The House on Friday passed legislation aimed at curbing President Obama’s use of executive authority to slow deportations of young people who arrived here as children.

The bill passed 216-192, with 11 Republicans voting against it and four Democrats voting in favor of the measure.

…

The House bill would block funding for continuation or expansion of the DACA program, a move Republicans said will discourage young migrants from trying to cross the border into the United States.

The vote was 216 for, 192 against. 4 Democrats voted for it, and 11 Republicans voted against it.

Here is the text of the bill:

SECTION 1. PROHIBITIONS RELATING TO DEFERRED ACTION.

 

Unless explicitly authorized by law, no agency or instrumentality of the Federal Government may issue after July 30, 2014, guidance, memorandums, regulations, policies, or other similar instruments the effect of which is–

 

(1) to modify, in any manner that would expand the number of aliens eligible for deferred action, the Executive memorandum dated June 15, 2012, concerning deferred action for childhood arrivals;

 

(2) to newly authorize deferred action for any class of aliens not in lawful immigration status in the United States; or

 

(3) to newly authorize any alien to work in the United States if such alien–

 

(A) was not lawfully admitted into the United States in compliance with the immigration laws (as defined in section 101(a)(17) of the Immigration and Nationality Act (8 U.S.C. 1101(a)(17))), except that this subparagraph shall not apply to an alien who is paroled under section 212(d)(5) of the Immigration and Nationality Act (8 U.S.C. 1182(d)(5)) or permitted to land temporarily as an alien crewman; and

 

(B) is not lawfully present in the United States.