DACA and the constitutional question


By now, most Americans know that the Trump administration has canceled the program known as Deferred Action for Childhood Arrivals (DACA), arguing that the Obama-era program is an unconstitutional overreach of executive authority. The program has allowed individuals brought to the United States when they were children — the median age was 6 — to remain in the country for a two-year period as long as they had no criminal record and stayed in school, in the military, or at a job. In addition, they had to be 31 years old or younger as of June 15, 2012, and they could reapply every two years.

Those opposing the program contend that the Constitution reserves to Congress, not the president, the authority to develop immigration policy. Back on June 8, attorneys general from 10 red states threatened to sue the Trump administration if he did not live up to his campaign promises to end DACA. Led by Texas’s Ted Paxton, they also included those in Kansas, Nebraska, Alabama, Arkansas, Idaho, West Virginia, South Carolina, Louisiana, and Tennessee.

Of the 800,000 or so DACA registrants, some 8,000 reside in Massachusetts, with an unknown number on the Island, according to a recent MV Times article by George Brennan.

President Trump stalled repeal of the program for six months to give Congress time to implement it through legislation. At times, it appears he wants a bipartisan law on his desk for signature well before the March 5, 2018, deadline. Microsoft, Starbucks, and Amazon have endorsed it. Would the president sign it in exchange for greater security or for funding of the wall between the United States and Mexico?

A more crucial question is the constitutional one. Did President Obama overstep his authority under Article II of the Constitution when he signed the executive order creating the DACA program?

The Obama administration argued that its authority to issue the executive order was rooted in its prosecutorial discretionary power. Decisions to prosecute an individual at all levels of government — local, state, and national — reside in the executive branch. That is why, for example, former FBI Director James Comey in July 2016 declined to file charges against Hillary Clinton concerning her use of a personal email server.

While President Obama’s executive order creating DACA has immigration consequences, it was prosecutorial, not immigration, policy he was making five years ago. That is why the lawsuit by the 10 attorneys general was not misguided. It would have allowed the courts to properly adjudicate the program under the president’s Article II authority, but it has now been aborted by the Trump administration’s decision to end the program.

A lawsuit, led by Massachusetts Attorney General Maura Healey and New York’s Eric Schneiderman, along with 14 other attorneys general, that George Brennan highlighted in the Times article does not raise the salient constitutional question: Instead, the suit argues that undermining DACA is fundamentally unfair.

It points to comments made by candidate Trump concerning Mexicans who come into the country without documents, or overstay their visas. And it includes his attack on the federal judge overseeing the civil action against his Trump University when several former students claimed that the promised unveiling of real estate secrets was fraudulent and they were taught nothing. The president disliked the rulings by Judge Gonzalo Curiel, who was from Indiana, whom he attacked by saying that he “happens to be, we believe, Mexican.”

Meantime, Maryland’s Attorney General Brian Frosh joined with the attorneys general from California, Maine, and Minnesota to argue additional two points, which again miss the main argument. First, they contend that the Trump decision reneged on the promise the United States gave to these young immigrants when it granted them work or student permits to remain in the country. And second, they maintain that the president failed to solicit public comment in advance of rescinding the program, which is a mandatory step he should have taken according to federal rules of procedure.

Again, they misunderstand the question that asks for litigation: How far does the president’s prosecutorial discretion go before it conflicts with his constitutional authority? Opponents may contend that the president’s argument is specious when he claims he is only exercising his discretion “not to prosecute.” He has, they may say, failed to acknowledge his lack of constitutional authority to deal with immigration matters. But this is a question the Supreme Court, not only those who oppose the program, should ponder and answer.

Perhaps Congress will implement the law that the president claims he wants. As he put it on Sept. 14, “Does anybody really want to throw out good, educated, and accomplished young people who have jobs, some serving in the military? Really! They have been in our country for many years through no fault of their own — brought in by parents at [a] young age.” Maybe Mr. Trump will stand by those words, but then again, he says that he still wants his wall built too. We may well know soon enough.


Jack Fruchtman teaches constitutional law and politics at Maryland’s Towson University.