Since his presidency began, President Trump has set his sights on rolling back many of the actions of President Obama. At times, that task has proven easy — as with many federal regulations and executive orders.
Other times, the opposition has been fierce.
Enacted under Obama, the Deferred Action for Childhood Arrivals (DACA) program allowed undocumented individuals who arrived in the United States before age 16 and had lived here since June 15, 2007, to stay, work and go to school in the United States without facing the risk of deportation for two years — with renewals available.
Getting rid of a U.S. Statute requires action by Congress or the U.S. Supreme Court, and rolling back regulations requires going through the Administrative Procedures Act lengthy notice-and-comment process. But DACA was established through a Department of Homeland Security (DHS) Memorandum during the Obama presidency — and getting rid of an agency memorandum only requires a superseding memorandum. DHS has issued one.
The Trump administration has essentially given Congress six months to save DACA. DHS will continue to renew DACA permits for that time period.
While many onlookers will ascribe clear political motives to the President’s decision, the timing of his decision was likely affected by legal considerations. Ten attorneys general had threatened to sue the federal government if DACA was not rescinded by September 5, 2017.
In their suits, the attorneys general threatened to argue that the DACA program represented an unconstitutional and unlawful overreach by the President. They have pointed to the treatment of the similar Deferred Action for Parents of Americans (DAPA) and Expanded DACA programs — which were both blocked by courts from going into effect.
In blocking DAPA and Expanded DACA, the courts held that the Executive Branch does not have the unilateral power to confer lawful presence and work authorization on unlawfully present aliens simply because the Executive chooses not to remove them. Rather:
‘In specific and detailed provisions, the [Immigration and Nationality Act] expressly and carefully provides legal designations allowing defined classes of aliens to be lawfully present.’ ‘Entirely absent from those specific classes is the group of 4.3 million illegal aliens who would be eligible for lawful presence under DAPA.’ Likewise, ‘[t]he INA also specifies classes of aliens eligible and ineligible for work authorization . . . with no mention of the class of persons whom DAPA would make eligible for work authorization.’
Attorney General Jeff Sessions embraced similar reasoning in a September 4 letter to the Acting Secretary of DHS.
Over the past few months, twenty attorneys general joined a letter supporting DACA. They quoted Justice Scalia, a conservative, who noted that the executive branch has a long history of “engaging in a regular practice . . . of exercising [deferred action] for humanitarian reasons or simply for its own convenience.” They also pointed out that legal challenges to DACA have not been successful — and that DACA and DAPA are not identical.
If avoiding a lawsuit was President Trump’s only motivating factor, he might not be successful. So far two state attorneys general have vowed to sue if DACA is rescinded. For now, however, the Dreamers and their allies will have to watch and wait.
About the author: Lisa Soronen is the executive director of the State and Local Legal Center (SLLC), which files Supreme Court amicus curiae briefs on behalf of the Big Seven national organizations, including the National League of Cities, representing state and local governments. She is a regular contributor to CitiesSpeak.