Civic Register
| 9.7.17

Tell Congress: Is DACA Unconstitutional?

Join us and tell your reps how you feel!

What's the story?

In announcing the Trump administration’s plans to end DACA, Attorney General Jeff Sessions said the program "was inconsistent with the Constitution’s separation of powers."

Sessions quoted, at some length, testimony given before the House Judiciary Committee by George Washington University Law School Professor Jonathan Turley. The AG quoted Turley as saying:

"In ordering this blanket exception, President Obama was nullifying part of a law that he simply disagreed with.….If a president can claim sweeping discretion to suspend key federal laws, the entire legislative process becomes little more than a pretense…The circumvention of the legislative process not only undermines the authority of this branch but destabilizes the tripartite system as a whole."

Was DACA unconstitutional from the start?

First, we need to take a quick look at how the program came about.

As The New York Times reported, "For 16 years, advocates for legalizing young immigrants brought here illegally by their parents have tried to pass legislation to shield them from deportation. The bill was called the Dream Act, and in Congresses Democratic and Republican, and in the Bush and Obama administrations, whether by stand-alone bill or comprehensive immigration legislation, it failed again and again."

Frustrated by Congress’ failed attempts to pass legislation, in 2012 then-President Obama signed DACA into law through an executive order. The policy was meant to protect illegal immigrants who were brought to the U.S as minors – so-called "Dreamers" - from deportation. 800,000 undocumented immigrants are currently benefiting from the program.

"Attorney General Jeff Sessions claims that the Obama Administration violated the Constitution when it decided, as a matter of prosecutorial discretion, not to deport Dreamers and instead to invest enforcement resources elsewhere," Newsweek explained.

So was DACA constitutional or wasn’t it?

Arguments For Constitutional

In an open letter in defense of DACA, a group of more than 100 law professors wrote:

" Prosecutorial discretion exists because the government has limited resources and lacks the ability to enforce the law against the entire undocumented population. Recognizing this resource limitation, Congress has charged the Secretary of [the Department of Homeland Security] with ‘establishing national immigration enforcement policies and priorities.’"

And Michael Tan, an attorney with the American Civil Liberties Union’s Immigrants Rights Project, wrote, "The ultimate legal authority for DACA lies in the U.S. Constitution. Article II, Section Three of the Constitution states that the president ‘shall take Care that the Laws be faithfully executed.’ Carrying out our immigration laws involves deciding who should be targeted for deportation and who should be allowed to stay."

In the past, the ACLU has also argued that "DACA is a lawful exercise of the enforcement discretion that Congress delegated to the executive branch in the Immigration and Nationality Act (INA), which charges the executive with ‘the administration and enforcement’ of the country’s immigration laws.’"

Arguments Against Constitutional

In Sessions’ speech, he said:

"Our collective wisdom is that the policy is vulnerable to the same legal and constitutional challenges that the courts recognized with respect to the DAPA program, which was enjoined on a nationwide basis in a decision affirmed by the Fifth Circuit.

"The Fifth Circuit specifically concluded that DACA had not been implemented in a fashion that allowed sufficient discretion, and that DAPA was ‘foreclosed by Congress’s careful plan.’"

Sessions is referring to this case:

In 2014, Texas and 25 other states sued the Obama administration over a directive known as "DAPA" that would have deferred the deportations of veterans and the parents of Dreamers. As The New York Times reported, the 26 states accused the Obama administration of “of ignoring federal procedures for changing rules and of abusing the power of his office by sidestepping Congress.”

In early 2015, a federal district court issued an order to block DAPA from moving forward while the legal case progressed. The Obama administration appealed the decision, arguing the Immigration and Nationality Act (INA) granted the executive branch the authority to make changes to existing immigration law.

But the Court of Appeals for the Fifth Circuit Court denied the appeal, ruling that the INA "flatly does not permit the reclassification of millions of illegal aliens as lawfully present and thereby make them newly eligible for a host of federal and state benefits, including work authorization."

In June 2016, SCOTUS ruled 4-4 on the above case, which left in the place the appeals court ruling blocking the DAPA program.

Sessions is arguing that DACA is illegal for the same reasons DAPA is.

"The point here is … the president does not have the authority to waive immigration law, nor does he have the authority to create it out of thin air," Rep. Steve King (R-IA) said when DACA was first announced.

Following Sessions’ speech, White House Press Secretary Sarah Huckabee Sanders also questioned the legality of DACA, calling it "unconstitutional" and “in clear violation of federal law.”

"It’s not cold-hearted for the President to uphold the law," she said. “We are a nation of law and order and the day that we start to ignore the fact that we are that, then we throw away everything that gives these people a reason to want to come to our country. If we stop becoming the country that we were envisioned to be, then we throw away what makes us special, which makes America unique. This President’s not willing to do that. The previous administration was, this one isn’t.”

What do you think? Is DACA "unconstitutional" and “in clear violation of federal law”? Or does DACA fall under the executive branch’s discretion over “the administration and enforcement” of immigration laws? Hit the Take Action button and tell your reps whether you think DACA’s constitutional. Then comment below—that’s well within your First Amendment rights.

—Josh Herman

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(Photo Credit: BeeBright / iStockphoto)