On the Legal Constitutionality of DACA

By Daisy Ni (PO ’21)

From the start of his campaign, President Trump declared to “immediately terminate President Obama’s two illegal executive amnesties.” This included DACA, a program that offered certain young unauthorized immigrants the chance to apply for work permits and temporary protection from deportation. Today, we see the reality of what had previously only been harsh rhetoric—on September 5th, Attorney General Jeff Sessions announced the Trump administration’s decision of rescinding the program.

Created by the Obama administration in 2012, DACA has since proved to be an economic boom, allowing cities and states to gain new tax dollars and employment. DACA does not grant legal status to immigrants, nor does it provide a path to citizenship: it grants deferred action for those entering the country as minors. The program was created after the recognition that most DACA recipients are largely raised in the U.S. and had immigrated without awareness of the consequences of their actions.

So what exactly would be the ramifications of the termination? Calculations of the ramifications are uncertain, as DACA’s fate remains a matter of discussion in Congress. The Center for American Progress (CAP), however, found that for every business day that DACA renewals are put on hold, an average of 1,400 employees can be fired for their jobs. Additionally, as the state hosting the largest percentage of DREAMERS—one in four of the 750,000 recipients—California would face disproportionate losses, suffering an estimated loss  of $11.3 billion in tax revenues a year.

What then is the Trump administration’s reasoning behind their decision? President Trump himself has repeatedly made statements on DACA’s supposed unconstitutionality, and Sessions referred to the program as “lawlessness” and an “unconstitutional exercise of authority by the executive branch” when justifying the resolution.

Defenders of the program derive DACA’s legal authority from Article II, Section Three of the U.S. Constitution, which states that the President “shall take Care that the Laws be faithfully executed.” When applied to immigration and nationality legislation, the Take Care Clause implicates the President as a shareholder of power with Congress in the matter of implementation of laws, and vests in him a sense of political responsibility over their execution. The words “Take Care” suggest the constitutionality and inevitability of prosecutorial favor, indicating that the President has the right to determine the direction and conditions in which legislation functions. Thus, the power to target some groups for removal over others is inherent in the powers of the presidency.

Furthermore, Congress has historically delegated additional powers regarding immigration to the Department of Homeland Security, the vessel which had been largely accountable for the implementation of President Obama’s executive action. The Secretary, for example, is “charged with the administration and enforcement of… all other laws relating to the immigration and naturalization of aliens,” thus acknowledging that the legislative branch does not hold the sole authority over the domain of immigration. In particular, the Secretary also has the duty of “establishing national immigration enforcement policies and priorities,” a clause that implicitly realizes the legitimacy of functions such as deferred action playing a role in American politics.

These responsibilities granted to the executive branch have further been supported by the judicial branch. For example, Arizona v. United States concluded in 2012 that “a principal feature of the removal system is the broad discretion exercised by immigration officials… Federal officials, as an initial matter, must decide whether it makes sense to pursue removal at all.” After all, we must realize the pragmatic necessity of prosecutorial favor. Due to a limitation of resources and personnel, the federal government cannot afford to prosecute and deport all undocumented immigrants. Thus, a program such as DACA, which grants leniency to individuals on basis of good behavior, is a practical and efficient method of prioritizing and concentrating federal efforts.

This legal history suggests that the Trump administration’s reasoning behind their decision to terminate DACA is largely political and of partisan intents, rather than based on an issue of constitutionality as they claim. The administration’s actions on DACA has other minority groups concerned about their future legal status, and should force Americans to be introspective about what it truly means to be an American.



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