//  5/5/17  //  Commentary

Yesterday I wrote about the administration’s two-faced treatment of the Deferred Action for Childhood Arrivals program (DACA) and the DREAM-ers (the young immigrants who are part of DACA). On the one hand, Trump has said that DREAM-ers should “rest easy” about his immigration policies because his administration is “not after the dreamers, we are after the criminals.” Last weekend, on CNN, DHS Secretary Kelly sang a similar tune: “We’re [DHS] not targeting them [the DREAM-ers]. The President is obviously sympathetic.” Obviously, he says. Notwithstanding the many DREAM-ers who have been arrested, detained, and are facing deportation.

The arrests, detentions, and deportations are the other, uglier hand with which the administration has been treating the DREAM-ers.  As I explained yesterday, a DACA in which participants can be rounded up based on piddly nothings or their immigration status is not DACA at all.

What’s especially maddening about the President’s blatant misrepresentations about his administration’s approach to DACA and the DREAM-ers is that the treatment of DREAM-ers is entirely and easily within his control. Immigration and Customs Enforcement (as well as U.S. Customs and Border Protection) are offices within the Department of Homeland Security.  Kelly, as the head of DHS, is in charge of ICE and could easily charge ICE with respecting DACA (if Kelly and Trump actually wanted ICE to do so). And Kelly reports directly to Trump, which means that Trump can fire Kelly at will for simple policy disagreements, such as how ICE is treating DREAM-ers. (Trump could do the same to Attorney General Jeff Sessions if he disagreed with Sessions’ representations about the administration’s policy toward the DREAM-ers.)

Why does it matter that Trump could fire Kelly, who is in charge of ICE? (Or why does it matter that he could fire Sessions for Sessions' statements suggesting the end of DACA?) Well, students of constitutional law are familiar with the so-called unitary executive theory of the Presidency—the idea that all executive officers are in fact exercising the discretion of the President. ICE officers, the theory goes, report to the Director of ICE, who reports to the DHS Secretary, who reports to Trump. Trump can fire the DHS Secretary any time he wants. Proponents of the unitary executive theory have been telling us for a long time that this kind of control (the ability to fire an agency head) gives the President a sufficient amount of “control” over executive officials and their actions. And that’s a good thing, they say, because it means that the President is “accountable” to the people for those officers' actions.

Trump is thus directly accountable for ICE’s treatment of the DREAM-ers. If Trump dared to actually give a darn about any of the DREAM-ers, he would direct ICE not to arrest, detain, or deport them so long as they have not committed a crime. He would direct ICE not to arrest, detain, or deport DREAM-ers who have done nothing that suggests they are or have become a threat to public safety. He would direct ICE not to deport DREAM-ers simply because they have tattoos or grew up in rough neighborhoods (all things which DHS knew when it concluded that particular DREAM-ers could be a part of DACA).

It is thus not ICE and Trump’s goons who are destroying DACA. It is Trump himself. Trump should be held accountable for that choice. He should be asked, whenever he holds his next circus of a press conference, whether he agrees with the arrests, detentions, and attempted deportations of specific DREAM-ers. Their livelihood, their arrests, their hopes and dreams, and the promises they relied on are all in Trump’s hands.

Disclosure: I am among the counsel to Daniel Ramirez Medina, the DACA recipient whom the Trump administration arrested and detained and is trying to deport. For an update about what is happening in the case, read Ted Boutrous and Jesse Gabriel’s piece in the Wall Street Journal. Further disclosure: Few things make my blood boil as much as this administration’s treatment of the DREAM-ers.


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