President Trump has come in for more vilification than usual for announcing, through Attorney General Jeff Sessions, that the DACA (Deferred Action for Childhood Arrivals) program may be ended in six months. Yet lost amid the howls of outrage over the President’s actions, and the demands that DACA’s beneficiaries—the so-called Dreamers—be allowed to stay in America, are important questions: Could Trump have maintained the program even had he wanted to? And who should ultimately make immigration policy anyway?
The DACA program was created by President Obama in 2012 to protect illegal/undocumented immigrants who had been brought to America as children by their parents. To win DACA protection, one had to have been brought to America before the age of sixteen; to be a student, or high school graduate, or an honorably discharged veteran of the armed forces, and to have no record of any conviction for felonies or serious misdemeanors. Those who qualify are exempt from deportation for two years and may reapply and receive subsequent exemptions as well. They are not, however, eligible for citizenship, or federal welfare or student aid benefits. Currently, about 800,000 are protected by DACA. They’re called Dreamers since they presumably want to pursue the American Dream.
Supporters of the DACA program—Republicans and Democrats alike—argue that its beneficiaries are law-abiding and hardworking. They do not take jobs from Americans, but, by working themselves they contribute to economic expansion and job creation for all. To deport them would disrupt and damage the economy. Moreover, it would be cruel, since many have no knowledge of, or connection with, the countries from which their parents took them. Therefore, they argue, President Trump is wrong to end it.
But the program may have been closer to being ended than the President’s critics either understand or are willing to admit. The President’s announcement came following a threat by a group of Republican state attorney generals, led by Texas’s Ken Paxton, to sue to end the DACA program. This threat was by no means idle. In 2014 26 states, including Texas, sued to end the DAPA (Deferred Action for Parents of Americans) program, also created by President Obama. His purpose was to protect the undocumented parents of American citizens and aliens with permanent residency status from deportation. President Obama claimed he could justify the program as an extension of his “prosecutorial discretion” to abstain from deporting some classes of illegal immigrants. He took action after Congress failed to enact the DACA and DAPA programs into law.
However, the states’ attorneys general argued that the President lacked the authority to make immigration policy in the absence of congressional action. To date, the federal courts, including the Supreme Court, have agreed with the attorneys general and have blocked implementation of the DAPA program, at least temporarily, pending additional review. Since President Obama asserted the same “prosecutorial discretion” as the basis of the DACA program, one can reasonably assume that the courts might also put at least a temporary halt to it as well in response to a legal challenge.
Ironically, President Trump’s actions may lead to the DACA program’s salvation rather than extinction. He has announced that his administration will take no action against the Dreamers for at least six months, giving Congress time to enact the DACA program into law. While the President’s authority to make immigration policy is questionable at best, the authority of Congress to do so is beyond dispute. DAPA and DACA programs created by the President may not be able to survive legal challenges, but the Constitution clearly gives the Congress the authority “to establish an (sic) uniform Rule of Naturalization,” i. e., to establish a policy for immigrants to America. So the DAPA and DACA programs, if enacted by Congress, would almost certainly survive the sort of legal challenge that might otherwise end them if they exist only by presidential fiat.
Exactly what President Trump wants done about DACA is not as clear as one might initially think. He’s been charged with trying to end the DACA program to appease his anti-immigrant base. Yet he has tweeted his own support for the Dreamers, saying they can feel safe for at least six months while Congress tries to decide what to do about DACA, and that should Congress fail to act he’ll revisit the issue before making a final decision. However badly his hard core supporters want the Dreamers deported, President Trump, by punting the issue to the one institution whose authority to protect the Dreamers is beyond question, may well have set in motion the legislative process which will keep them in America legally.
Malcolm L. Cross has lived in Stephenville and taught politics and government at Tarleton since 1987. His political and civic activities include service on the Stephenville City Council (2000-2014) and on the Erath County Republican Executive Committee (1990 to the present). He was Mayor Pro Tem of Stephenville from 2008 to 2014. He is a member of St. Luke’s Episcopal Church and the Stephenville Rotary Club, and does volunteer work for the Boy Scouts of America. Views expressed in this column are his and do not reflect those of The Flash as a whole.
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