In a panel discussion analyzing President Donald Trump’s decision to “rescind” the Obama-era Deferred Action for Childhood Arrivals order, former Virginia Attorney General Ken Cuccinelli (R) got a legal lesson on the use of the term “unconstitutional.”
“President Trump didn’t create a problem today,” Cucinelli told the panel headed by CNN’s Brooke Baldwin. “Barack Obama, when he was president, created a problem when he violated — knowingly violated the constitution with this program, but because it’s young people, it tugs at our heart strings and I understand that.”
He went on to claim that DACA, like the newly-ended Deferred Action for Parents of Americans program, had been “ruled unconstitutional” — an argument the ACLU of Texas’s new legal director Andre Segura refuted.
“The court that you’re referring to is just the Fifth Circuit Court of Appeals,” Segura said. “The fifth circuit was wrong on the DAPA decision. The Supreme Court has not spoken on this. So you need to be clear about when you say a court has ruled this unconstitutional. It is not the ultimate court and president after president, for decades, have used this prosecutorial discretion.”
Baldwin then gave the floor to former U.S. attorney Laura Coates, who agreed that Cucinelli needed to rethink his legal arguments.
“Andre actually is absolutely correct in that the unconstitutional definition that’s being used by Ken is actually inaccurate with respect to this case,” Coates said. “At the time the Supreme Court weighed in as to whether or not there should have been notice and comment proceedings, you had Justice Scalia who had just passed away and you had a 4-4 split which meant that there is no precedent on this issue. It has not been declared unconstitutional.”
Though it’s the Trump administration’s prerogative to rescind former President Obama’s order, Coates argued, to use the term “unconstitutional” when referring to the executive processes used by presidents for more than half a century is a false equivalency.
“It is not only premature, it is inaccurate to say that the DACA program is unconstitutional,” she concluded.
Watch the fiery legal lesson below, via CNN.