Legal Implications for Deferred Action for Childhood Arrivals

Deferred Action for Childhood Arrivals is a program set forth in June 2012 that lowers deportation priority for illegal immigrants, mostly children. The set requirements to meet the deferred action (the government allows for two years) are to have arrived in the U.S. before age sixteen, lived continuously in the U.S. for five years, be under age thirty, not convicted of a felony or major misdemeanor, and enrolled in some kind of education or the military. The Obama administration rolled out the program with the intent of preventing children who came to America illegally from deportation. Secretary of Homeland Security Janet Napolitano was the official author of the memo instructing the Customs and Border Protection, Immigration and Customs Enforcement, and U.S. Citizenship and Immigration Services to enact policies that would allow immigrants who met the above requirements to defer deportation for two years as well as receive work permits. Immigrants could then reapply after two years in order to defer the action again. Now that DACA is being repealed, the legal implications of the program must be examined.

The Trump administration ended DACA on September 5 for a variety of legal reasons. Attorney General Jeff Sessions called it "an unconstitutional exercise of authority by the Executive Branch." The new administration expressed concerns that President Obama overstepped his constitutional boundaries by undermining Congress's law-making power. Sessions also were concerned about DACA's imminent removal by a federal court. After all, an extension of DACA was struck down in Texas vs. the United States. The legal implications of the first reason originate in the Constitution. The power to legislate stems from Article I, Section I of the Constitution and is granted to Congress, not the executive branch.

Moreover, Article I, Section 8, Clause IV gives Congress power over naturalization or immigration. This constitutional power is to decide the qualifications of citizenship. Therefore, the Constitution gives Congress the power to make laws about immigration. DACA appears to be a huge constitutional overstep by the Obama administration. At first glance, President Trump's repeal of DACA looks like a restoration of law in order, especially when considering the economic implications of DACA cited by Sessions. But other examinations of the Constitution pose a complication to Trump's claims.

Article II of the Constitution explains the various powers and responsibilities of the president. The pertinent information is that the president has the power to appoint officials to help him execute his job (section 2, clause 1), and he has the power to enforce the laws that Congress has legislated (section 3). Obama used his officials (in this case, Janet Napolitano) to enforce the law in a way that he saw fit. Moreover, Trump is using the same power but in a different way. The legal term used in this situation is prosecutorial discretion, which simply is a decision on who and what crimes to prosecute. Although in U.S. v. Batchelder, the Supreme Court ruled that prosecutorial discretion by the executive branch can only be for small groups or individuals with very good reason. DACA stays within these bounds. Children who meet the guidelines of DACA are a small group compared to the U.S. population (roughly 800,000, according to sessions). Moreover, the reasons they should be exempt from deportation and allowed to work are very sound. The Department of Homeland Security's memo released in June 2012 explains why prosecutorial discretion is necessary, "As a general matter, these individuals lacked the intent to violate the law.... additional measures are necessary to ensure that our enforcement resources are not expended on these low priority cases but are instead appropriately focused on people who meet our enforcement priorities," (Napolitano 1). Deporting children for crimes they were not aware of committing violates the law principle of Mens Rea (the mental state required to commit a crime). Moreover, there are more important illegal immigrants (felons) to focus deportation resources on. DACA was an arguably legal move from the Obama administration on a constitutional basis, and protecting minors from federal prosecution and allowing them to work is ethically sound.

In conclusion, DACA is a contentious program that is legal in some aspects of the Constitution and illegal in others. President Obama and Trump each have the power to draft executive orders, and each has the power to repeal them. The legal implications of DACA will be studied in the future as a testament to America's rocky history of immigration along with the executive branch's ever-increasing use of the executive order to accomplish the presidential agenda.

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