Trump's DACA Plan Grounded in Dubious Legal Claims

Written by Tiger Li, Common Cause intern, on September 8, 2017


President Trump’s threat to deport about 800,000 young immigrants, many attending U.S. schools, holding jobs, and paying taxes, is based on legally dubious claims that an Obama-era executive order granting them “lawful presence” in the U.S. exceeded the then-president’s authority.

In announcing the administration’s decision to end the Deferred Action for Childhood Arrivals (DACA) program, Attorney General Jeff Sessions claimed on Tuesday that President Barack Obama’s executive action creating DACA in 2014 was an unconstitutional attempt to bypass the will of Congress.

But a legal analysis released by Common Cause shortly after Obama created DACA concluded that the program is a lawful exercise of the administration’s prosecutorial discretion, “steeped in the Constitution, reaffirmed by the Supreme Court, premised in administrative procedure law, and expressly provided for in the immigration statutes.”

The analysis noted that Presidents Ronald Reagan and George H.W. Bush “took similar measures to expand deferred deportation and work authorization to children and spouses of those who qualified for amnesty under the 1986 immigration bill. “

DACA allows individuals brought to the US illegally prior to both June 2007 and their 16th birthday to defer deportation in two year intervals and receive work permits. The 800,000 or so young people covered, known as DREAMers, can receive Driver’s Licenses in many states and Social Security numbers.

According to Article II of the Constitution, the executive branch, headed by the president, has broad authority to determine how laws are enforced. The Supreme Court in Arizona v. United States (2012), ruled that “federal officials, as an initial matter, must decide whether it makes sense to pursue removal at all. If removal proceedings commence, aliens may seek asylum and other discretionary relief allowing them to remain in the country.”

Through the Immigration and Nationality Act, passed in 1952, Congress has also granted the executive branch the ability to grant immigrants deferred removal. The bill explicitly recognizes “deferred action and work authorization,” the key components of DACA, as tools for protecting children.

Trump has given Congress six months to pass legislation to permanently settle the DREAMers fate and the White House says it will no longer accept new applicants for the program.

If Congress fails to act, more than 600,000 people could lose their protections by August 2019 and face deportation. Immigration officials claim that they will not prioritize DREAMers for deportation, though the Department of Homeland Security stated that it may eventually give deportation agencies access to files containing the personal information of DACA participants.

Sessions claimed that terminating DACA would promote the rule of law and reduce corruption and human suffering, though many of this administration’s actions exhibit disregard for both the rule of law and the general wellbeing.  Last month, for example, the White House pardoned former Maricopa County AZ Sheriff Joe Arpaio, a man who routinely violated the Constitution by ordering his deputies to arrest and detain Latinos they suspected might be in the U.S. illegally. Arpaio persisted in that policy in defiance of court orders, forcing detainees to suffer cruel and inhumane treatment.

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Office: Common Cause National

Issues: More Democracy Reforms

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