Trump Administration Emphasizes Rule of Law in Rescinding DACA

Attorney General Jeff Sessions makes a statement at the Justice Department in Washington, Tuesday, Sept. 5, 2017, on President Barack Obama's Deferred Action for Childhood Arrivals, or DACA program. (AP Photo/Susan Walsh)

Many commentators and affected “dreamers” have focused on the consequences for individuals of ending DACA, but the Trump administration is seeking to frame the decision in legal and constitutional terms.

Attorney General Jeff Sessions announced Tuesday that DACA is being phased out over a period of six months. DACA (Deferred Action for Childhood Arrivals) is the Obama-era program that protected children of illegal immigrants (the “dreamers”) from deportation and made them eligible for a work permit. Ten State attorneys general have threatened to challenge DACA in court.

In the White House press release, DACA is referred to as “unlawful,” and it states that “President Trump refuses to allow criminal activity to dominate our immigration system, taking action to restore the law and protect all Americans.”

This would be in line with previous Trump administration actions to uphold the actual immigration laws, such as not releasing people caught entering illegally into the country, and signaling that jurisdictions with “sanctuary” policies must in fact follow federal immigration laws.

The Problem With DACA

Andrew McCarthy writes in National Review that the problem with DACA is not that it came in the form of an executive action, but that this action, by granting a group of illegal immigrants deferred action from deportation and eligibility for a work permit, goes beyond the authority of the executive branch—it “presumes to exercise legislative power by conferring positive legal benefits on a category of aliens.”

In a much-publicized Facebook post on Tuesday, Obama says that, since Congress did not present the immigration bill he requested, “my administration acted.” This argument has also been echoed by other Democrats. McCarthy refers to this line of thinking as a “constitutionally heretical position,” meaning that it goes against the idea of separation of powers.

McCarthy further states that DACA “distorts the doctrine of prosecutorial discretion.” Prosecutorial discretion means that the executive branch must choose where to spend its limited resources when it comes to law enforcement. Not prioritizing something illegal, such as illegal immigration, does not make it legal, however. McCarthy argues that this is the de facto outcome of DACA.

Obama nevertheless insists in his Facebook post that DACA is “based on the well-established legal principle of prosecutorial discretion,” and it would have been up to the courts to decide, had DACA actually gone to court.

A similar program, DAPA (for illegal immigrants who are parents of American citizens or lawful permanent residents), was blocked from going into effect after several states filed lawsuits against the Federal government.

The Trump Administration thus argues that it expected the threatened court actions by different states to “abruptly enjoin” DACA, leading to an even more disruptive outcome for many “dreamers.” By winding it down in an orderly fashion, this risk is averted, it says.

By rescinding DACA, the onus is now on Congress to come up with actual legislation. President Trump tweeted that he will “revisit the issue,” if Congress does not find a solution in six months. Obama himself also emphasized that DACA was only a temporary measure. In June 2012 he said, “Now let’s be clear—this is not amnesty, this is not immunity. This is not a path to citizenship. It’s not a permanent fix.”