Sunday night, President-Elect Trump repeated his oft mentioned campaign promise to repeal Deferred Action For Childhood Arrivals, (DACA). DACA is an executive order issued by President Obama in 2012 (see below for more information on executive orders and an analysis of the constitutionality of the DACA executive order). Executive orders are left in place unless, and until, a President (the sitting or a future President) repeals it. So, the answer is Yes, President Trump can repeal DACA on his first day as President.
If President Trump does repeal DACA, what will it mean for the 700,000+ individuals currently living in the U.S. and legally working under the program?
Not only did DACA serve as a means for certain undocumented immigrants brought to the United States as young children to legally work, but although DACA recipients cannot get a Green Card or legal status through the program, it allowed them to remain in the U.S. without fear of deportation and receive authorization to legally work here.
Getting a DACA application approved is not easy. Applicants are heavily screened. In order to receive DACA, applicants are required to submit to background checks, pay taxes and maintain good moral character. DACA (and the associated employment authorization) is valid for 2 years and must be renewed prior to the expiration date. President Trump has not detailed his plans yet to repeal DACA, so it is still unknown the exact consequences that DACA recipients will experience in the event of a repeal.
Effect on DACA Work Permit
We can be certain, though, of what will happen with the validity of work permits issued pursuant to the DACA program in the event of a repeal. DACA recipients will lose their work authorization and will no longer be able to legally work in the United States. Essentially a repeal means that all DACA work permits are immediately invalid. This is a worse case scenario and produce a particularly harsh effect, borne not just by DACA recipients, but by their employers, who will need to immediately fire DACA employees or risk facing serious legal consequences, including fines and even criminal charges.
President Obama has reportedly been urging Trump to reconsider his position on DACA. Despite the controversy over DACA, the program is only eligible to individuals illegally in the United States only because they were taken here as children, through no fault of their own. These kids have grown up and went to school just like any other American or legal resident and most know no other home. Studies of the program show that overall DACA has been positive for recipients and the country alike.
At this point though if Trump follows through with his promise to repeal DACA, it is unclear if DACA recipients will be able to legally work until their current work permit expires, or if the repeal will immediately cancel and invalidate all DACA work permits. I will post updates on this topic when the information becomes available and further conclusions can be drawn.
Will DACA beneficiaries be deported?
The other major concern is whether or not the Trump administration will use the biographical data collected through DACA to deport applicants, who of course are all undocumented immigrants. Obama pledged that his administration would not use the collected information to deport anyone, but unfortunately he has no power to prevent a future President from doing this.
Trump has vowed to deport 11+ million people who are living in this country illegally. He has since softened his stance a bit, stating that his first priority will be to deport criminal illegal immigrants, then to build the wall and then to get to the rest of the people here illegally and figure out what to do with everyone. DACA recipients seemingly should be low on Trump’s to-deport-list, but if he decides to go for the low-hanging fruit, DACA recipients will be easy targets since the program enabled the Feds to collect a host of identity information on applicants, including who they are, where they live and have been living since they entered the United States as children. As such, until Trump provides the American public with details of his deportation scheme, it is impossible to know if DACA recipients should be worried about deportation or not. I will also post updates on this topic when more information becomes available and further conclusions can be drawn.
IS DACA CONSTITUTIONAL?
To answer this question, we first need to examine how DACA came into existence. DACA was instituted by President Obama in 2012 through an executive order. The provision of the Constitution that allows Presidents to issue executive orders can be found in Articles III, Section 3, “…take care that the laws be faithfully executed.” This clause is said to authorize the President to unilaterally act when necessary to uphold the Constitution. For example, the Emancipation Proclomation was an executive order issued by President Lincoln to end slavery. President Eisenhower used an executive order to order schools to desegregate. Executive Orders are not meant to bypass Congress, rather it is a tool for the President to direct federal agencies and their officers in their execution of congressionally established laws or practices.
Why did Obama issue DACA through an executive order? Obama issued this order after he failed to get Congress to pass an immigration reform bill that would have created a program similar to DACA, amongst many other immigration-related programs. There are many reasons that Congress failed to pass the bill, some of which can be attributed to Obama, other reasons were out of his control.
The process of a bill becoming a law is influenced by many factors, including money and a career politics. Some of these factors are legitimate checks in the system to ensure that legislation is not recklessly passed. While other factors are problematic as they involved special interests and a Congressman’s concern with re-election rather than on what is best for the nation.
Regardless of the reason, the immigration bill died in Congress during Obama’s first term, leaving millions of undocumented immigrants in the United States still waiting for a way to legally work and remain in the country.
As a result, Obama stepped in and passed an executive order, causing a flurry of controversy. DACA Opponents believe that Obama’s actions violates separation of powers because Congress is the branch of government who is tasked with making law, so by creating DACA, Obama is made a law.
Proponents of DACA, on the other hand, argue that Obama acted out of necessity to find some sort of solution to a growing problem that Congress repeatedly refused to address. Furthermore, as the head of the Executive Branch, Obama acted within his constitutional limits to mandate immigration policy.
Conclusion: Is DACA Constitutional? Like the question of constitutionality of all executive orders, the answer is not entirely clear. The President must be able to lead the nation and and carry out the laws, but that does not mean that he has blank slate to do so. The inherent danger of the power to issue executive orders is cannot be overstated if the President can invoke this clause every time Congress fails to appease him.
What is crystal clear, however, is that Congress needs to act because even if Trump leaves DACA alone, the concern of this issuing being raised again will remain.
If you want to show your support for the DACA program, log on to social media and use the hashtag #withDACA.
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