This morning the Department of Justice and the Department of Homeland Security announced that they are ending the Deferred Action for Childhood Arrivals (DACA) program.
The DOJ’s role in the announcement was to justify the end of the program by arguing that it is unconstitutional. After Congress failed to pass the DREAM Act, President Obama created DACA by executive order in June of 2012; it was updated in November 2014. Many on the right have argued that it overstepped executive branch authority, and the Trump administration has echoed that claim — ironic coming from the administration that claimed broad authority over immigration in pushing for Trump’s travel ban.
What forced their hand, though, was that ten states were threatening to sue the federal government to end the DACA program. If they had, then the Trump administration would need to decide whether to defend it, a no-win scenario for them: either they defend a program they don’t support, or they admit that the executive branch doesn’t have the broad immigration powers it envisions. The courts have already struck down the companion “DAPA” program to defer action for undocumented parents whose children were born here and are citizens, and that ruling hinted at concerns over the constitutionality of parts of DACA itself, but so far there have been no real tests of DACA — and many legal scholars argue that it’s fully constitutional.
Attorney General Jeff Sessions’ remarks this morning muddle this legal history in order to create a pretense for ending DACA “in light of imminent litigation.” He sent a letter to the Department of Homeland Security yesterday rendering the DOJ’s legal opinion that DACA is unconstitutional.
DHS, in turn, has announced its plan for ending DACA:
- Existing deferrals and employment authorizations issued under the DACA program will be honored through their expiration dates, under the terms of the program (which lets the government revoke them for almost any reason if provoked).
- No new applications for DACA, or for work permits for DACA recipients, will be accepted, starting today. Pending applications will be considered on a case-by-case basis (assume this means that nearly all will be denied).
- Renewals will be accepted until October 5th for current DACA recipients whose deferral expires between today and March 8, 2018. Granting of those renewals is at the discretion of DHS, however, so assume most will be denied.
- Existing authorizations for “advanced parole” (the ability to leave the U.S. and return) for DACA recipients. No new authorizations for advance parole will be granted.
Because the Trump administration is not revoking DACA status from anyone who currently has it, it will be tougher to sue to stop the Trump administration — as Washington Attorney General Bob Ferguson has threatened to do. Essentially, the same discretion that Obama used to create the program can be used by Trump to end it. DACA deferral is granted for two-year periods, and the program makes no guarantees about renewals.
At least on paper, anyone whose DACA status would expire in the next six months still has an opportunity to renew it. This gives Congress a bit of time to legislate a solution to allow undocumented immigrants, who were brought to the U.S. who pay taxes, contribute to the economy and in many cases have families here, to stay in the country. It’s not clear that Congress can make that happen, though, given its current level of dysfunction as well as its past inability to legislate immigration reform.. It’s also not clear that Trump would sign such a law, given the anti-immigrant fervor among his base of supporters.