Is DACA Constitutional?

Jansen VanderMeulen '19
Executive Editor

Is DACA Constitutional?

When President Donald Trump announced this week that he was ending the Deferred Action for Childhood Arrivals (DACA) program instituted under his predecessor, reaction from critics understandably focused on the consequences of the executive action. With DACA rescinded, approximately 800,000 unauthorized immigrants living in the United States will now be subject to deportation, where previously they were permitted a semblance of legal presence in the United States. Under DACA, those 800,000 or so immigrants were permitted to obtain driver’s licenses, attend college, and pay income taxes.1 With DACA now facing a March 2018 execution date, those immigrants’ continued protection from deportation is in question. President Trump has urged Congress to act, but it is uncertain exactly what sort of legislative fix he has in mind.

While the ramifications of DACA’s rescission are grave and receive more in-depth treatment in other sections of this newspaper, this columnist is stuck in 2012, when President Barack Obama issued the landmark protections for immigrants brought to the United States as children without legal authorization. Was that executive order legal? Legal scholars differ on that all-important question, and several states, led by Texas, had threatened suit against the order. States had already successfully sued to enjoin DACA’s more wide-reaching twin, Deferred Action for Parents of Americans (DAPA), which offered protection from deportation to the parents of U.S. citizens and lawful permanent residents.2  The position of those attorneys general challenging DACA’s legality can be summed up by a statement of one of their own, Attorney General Derek Schmidt of Kansas. Schmidt, in a statement to the Lawrence (Kansas) Journal-World, said, “The problem with DACA is that it is unlawful; under our Constitution, only Congress, not the president, has the power to change immigration law. Those who understandably feel strongly that the law should accommodate children brought to the U.S. at a young age and raised here would be well-advised to focus on persuading Congress to act.” Mr. Schmidt’s statement sums up the legal opposition to DACA: Congress has acted and declared that those who immigrate to the United States without legal authorization are to be subject to deportation. The president, they argue, lacks the power to unilaterally grant a sort of quasi-legal status to a group of immigrants whose presence in the United States is unlawful. That decision, should it be made, is Congress’s alone.

Not so fast, say DACA advocates. Writing in The New York Times, columnist Linda Qiu points to the Department of Homeland Security’s own DACA “Frequently Asked Questions” section, in which the department refers to DACA as “a form of prosecutorial discretion.”3,4 Scholars who support DACA’s constitutionality dispute that the program’s recipients have received any kind of legal status. Erwin Chemerinsky, dean of the University of California at Berkeley School of Law, writing for the Sacramento Bee, noted, “[P]residents always have discretion as to who to prosecute or deport. DACA did not confer citizenship on anyone.”5 Defending the constitutionality of President Obama’s order, Chemerinsky also noted immigration’s proximity to foreign policy, which he called “uniquely in the domain of executive power and control.”6

So what does DACA do, exactly? Does it, as critics claim, create a legal or quasi-legal status for unauthorized immigrants? Or, as Chemerinsky insists, is it merely a legitimate exercise of the president’s prosecutorial (in this case, deportation) discretion? The conservative Heritage Foundation insists that DACA recipients have been granted what they call “pseudo-legal status,” saying President Obama “promised them that they wouldn’t be deported and provided them with work authorizations and access to Social Security and other government benefits” despite the fact that Congress rejected proposals to do just that.7 The liberal ThinkProgress calls that “nonsense,” citing longstanding federal regulations from 1981 that allow an unauthorized immigrant granted deferred status the right to an employment permit.8 Critics argue that granting access to benefits, confirmed reprieve from deportation, and the ability to obtain a driver’s license is tantamount to conferring legal status upon individuals whose presence in the United States is proscribed by Congress. Supporters say the limited set of benefits given to DACA recipients is nowhere close to legal status, and that the president is empowered and, indeed, required to use his discretion to decide which unauthorized immigrants will be deported.

What is clear is that this issue is highly litigable and depends greatly on how “legal status” is defined. Both critics and supporters of DACA seem to agree that the president lacks the power to confer legal status on unauthorized immigrants. They disagree on whether DACA conferred that status. Reportedly, it was the suit threatened by the Texas-led attorneys general that led president Trump and Attorney General Jeff Sessions to announce the program’s termination.9 The Department of Justice lost the battle to preserve parent-focused DAPA when the United States Court of Appeals for the Fifth Circuit upheld a district court’s preliminary injunction against the program. While the program’s end fits conveniently with President Trump and Attorney General Sessions’ well-known disfavor of unauthorized immigration, a charitable observer of the administration might argue that the Department of Justice’s uncertainty of its ability to win the suit against the state attorneys general in court led to the president’s decision. 

With the executive order now rescinded, the legal question may be moot—for now. If Congress cannot pass a fix, it seems likely that a future Democratic President would implement a similar policy. But one of this newspaper’s core values is “there is never a bad time to discuss the separation of powers.” No doubt, the debate will rage on, and if there is any hope of coming to a consensus, defining what it means to have legal status seems to be the key.







6 Id.