Sen. Rick Scott (R-FL) has only been in office since January 8 and already he has given up on Washington, D.C. Having decided, based on his many days of experience, that compromise is impossible, he proclaimed on Thursday that President Donald Trump should simply ignore Congress and unilaterally act, not just to build his vaunted wall along the U.S.-Mexico border — but also to permanently protect young undocumented immigrants who were protected under President Barack Obama’s deferred action (DACA) program and other immigrants with temporary protected status (TPS).
Unfortunately for Scott, a prominent Republican lawmaker delivered an impassioned argument in 2013 for why the president of the United States does not have the authority to “include a permanent solution for DACA and TPS” in an executive order: it was Rick Scott, in a veto memorandum he authored while governor of Florida .
Scott tweeted a statement on Thursday afternoon urging Trump to stop trying to negotiate with Congressional Democrats and instead take unprecedented executive action to illegally solve the immigration debate. “Washington is far beyond broken – it’s full of actors who just want to play politics,” the former Florida governor opined. Should the other party “continue to refuse to work with him, then the President needs to use his emergency powers to fund border security and include a permanent solution for DACA and TPS.”
DC is far beyond broken – it’s full of actors who are just playing politics.@realDonaldTrump has tried to work with Cong. If the Dems continue to refuse to work with him, he needs to use his emergency powers to fund border security & include a permanent solution for DACA & TPS. pic.twitter.com/I7ulupV5VV
— Rick Scott (@SenRickScott) January 31, 2019
This, of course, is illegal. While some conservative legal scholars have embraced the notion that Trump can just declare an emergency and spend billions of taxpayer dollars to build the wall he vowed would be fully funded by Mexico, many others on the left and right dispute this. With a Trump-friendly judiciary, it is possible that he could get away with such a power grab nonetheless.
But no credible experts — on the left or right — have ever suggested that a president has the unilateral power to institute permanent protections for non-citizens without going through Congress first. Many Congressional Republicans even questioned whether the Obama administration had the power to grant them temporary protected status, but that relied on his executive power to exercise prosecutorial discretion.
And this point was made in 2013 by the then-Governor of Florida: one Rick Scott. In a veto memorandum, he lambasted the Obama administration for creating DACA at all, and argued that it could not and did not create a new legal status. “Deferred action is simply a policy of the Obama administration, absent Congressional direction, designed to dictate removal action by DHS agency discretion. It was never passed by Congress, nor is it a promulgated rule.” Scott made a similar argument in 2017, saying in a statement: “President Obama was wrong to address the Dreamers issue by Executive Order. He should have done it in conjunction with Congress, which is how we make laws in our democracy.” Even in his own statement on Thursday, he seemingly questioned his own logic, saying, “I know there will be critics that say the President shouldn’t do things like this by executive order. And they aren’t necessarily wrong.”
Scott, who as governor frequently ignored the law in his effort to suppress voters, claims to support a permanent protection for DREAMers brought to the United States as children, and has said that “these kids must be allowed to pursue the American Dream.” But rather than demanding his colleagues in the Senate Republican majority work with the House to enact one of the many stalled bills that would do just that, he instead is calling for the president to ignore constitutional processes and act in a way that would likely be struck down by the courts — a move that would offer the DACA beneficiaries no real protection at all.