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1/x In the days and weeks to come we will hear a lot about the supposed unconstitutionality of DACA. It's important to note the following:
2/x The question whether DACA and DAPA (the provisions covering parents) are unconstitutional is not as clear-cut as some folks pretend.
3/x When Texas and a bunch of other states challenged DAPA, DOJ mounted a strong defense of the regulations before SCOTUS.
4/x here is a link to the brief: scotusblog.com/wp-content/upl…
5/X DAPA was struck down because SCOTUS split 4-4 in reviewing the lower court's decision.
6/x In other words, there were at least 4 justices who thought DAPA (and by implication DACA) was fine. So, the idea being bandied about by
7/x a lot of newly-minted constitutional expert that DACA is clearly unconstitutional is sheer nonsense. The truth is the question of
8/x how much leeway an executive agency (in this case DHS) has in issuing regulations interpreting a statute (in this case the INA) is
9/x often a very close call, and one that courts (and scholars) have spilled oceans of ink debating. In short, while SCOTUS doesn't publish
10/x votes in non-decisions, it is entirely possible that DAPA (and by extension DACA) would have been upheld with Garland on the court.
11/11 The point I am belaboring to make is that it is a stupid political talking point to insist that DACA is "clearly" unconstitutional.
