//  9/7/17  //  Uncategorized

The President is phasing out DACA—the “Deferred Action for Childhood Arrivals” program that granted work authorization and a reprieve from deportation to the “dreamers,” individuals who entered the United States without authorization as young children.

Or maybe not.  Literally hours after his Attorney General and the Department of Homeland Security announced the program’s cancellation, President Trump tweeted that he might revisit the issue in six months.  So who knows?

I have written extensively before about some issues surrounding DACA and will just reiterate here some of my past observations.

First, although the dreamers’ position in this country is tragic, DACA always seemed to me (for reasons explained in this article and this blog post) to go beyond what the President could do on his own without more specific authorization from Congress.  Although no prior administration would have considered deporting these particular individuals an appropriate priority for immigration enforcement, DACA aimed to go beyond such conventional priority-setting and give the program’s beneficiaries still greater security, as well as concrete legal benefits such as work authorization.  That seemed to me to breach the President’s obligation to ensure faithful execution of the laws as they are, and not as he might wish them to be.

President Trump indeed invoked this point of constitutional principle in explaining his action.  But don’t be fooled:  the President’s commitment to faithful execution is entirely selective.  Although Trump has not adopted any new program precisely analogous to DACA, his very first executive order all but directed federal agencies to stop enforcing the Affordable Care Act.  His EPA, in a policy I addressed in this post, sought to cancel at least one important regulation without new rulemaking, but was (correctly) prevented from doing so by the courts.  More generally, President Trump’s administration has sought to limit regulatory enforcement across the board and cripple regulatory agencies with steep funding cuts, and of course the President has made statements encouraging police violence and pardoned a sheriff held in contempt of court for violating the Constitution.

In this broader context, DACA’s cancellation does not reflect some grand vindication of the rule of law by this President.  Instead, it reflects the see-saw character of federal administration, in which the on-the-ground application of governing substantive statutes and regulations often varies dramatically from one administration to the next.  This dynamic, which has been building for some time as a function of partisan polarization, strikes me as unhealthy:  it erodes confidence in written law, promotes cynicism about the impartiality of administration, and makes executive action, rather than congressional legislation, the focus of political effort.

It also generates difficult reliance questions that courts will have to sort out.  For reasons I address in this article (and summarized in blog posts here and here and in this op-ed column), courts generally cannot protect reliance on revocable administrative policies like DACA.  If reliance were protected, then executive officials could cancel legal requirements by inviting reliance on assurances of forbearance.  (If you doubt the importance of this principle, just consider what a corrupt and lawless administration might do with power to immunize illegal conduct by promising future impunity.)

Nevertheless, there are exceptional circumstances in which fairness considerations outweigh such separation-of-powers concerns.  One such circumstance, I have argued, would involve affirmative targeting of DACA beneficiaries based on their application information.  These individuals applied for the program—effectively confessing their deportability and documenting their whereabouts—in reliance on assurances that the information would not be used against them.  As I explain in my article, reneging on that assurance would violate their expectations of fair dealing in a particularly acute way, and due process may protect their reliance without undue harm to separation of powers.  After all, the government can still enforce applicable immigration laws by other means, just as it would have had to do had DACA never existed.

On that score, the good news is that the administration seems not to be planning to use DACA applications to target the program’s beneficiaries.  At the least, a DHS “frequently asked questions” webpage states that “information provided in DACA requests will not be proactively provided to other law enforcement entities (including ICE and CBP) for the purpose of immigration enforcement proceedings” except in the narrow circumstances under which such sharing was allowed by DACA itself.  DHS’s statement is somewhat ambiguous because it is framed as a response to a question about “pending” (rather than prior) applications.  But it seems intended to carry forward assurances included all along in DACA that application information would generally not be used for enforcement.

President Trump also indicated in his statement that he has “advised the Department of Homeland Security that DACA recipients are not enforcement priorities unless they are criminals, are involved in criminal activity, or are members of a gang.”  The administration’s adherence to this stated prioritization, as well as its assurances about information sharing, will be important things to watch.

More broadly, the ball is now very much in Congress’s court.  As a temporary measure, Congress might consider denying funding to pursue their deportation or rescind their work authorization and other benefits.  Indeed, right now an appropriations restriction is preventing the executive branch from prosecuting state-compliant medical marijuana businesses despite federal prohibitions on marijuana possession (although President Trump—incorrectly—claimed authority to disregard this funding constraint in a signing statement).

If Congress lacks the votes to rapidly enact a more durable fix, a similar measure could provide at least temporary relief for the Dreamers.  As for a long-run solution, even President Trump has indicated he wants legislation granting them lawful status.  His administration should work with Congress to get it.

 


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