On June 15, 2012, former President Obama announced the establishment of the DACA program, unilaterally granting deferred action for certain individuals who were brought to the United States as children by parents who had entered the country illegally. The intent behind the creation of the program was to allow eligible individuals who did not present a risk to national security or public safety to request temporary relief from deportation proceedings and apply for work authorization. However well-intentioned, though, the former president’s establishment of the DACA program was a clear abuse of executive authority – an attempt to essentially create law out of thin air – and the Constitution is explicit in regard to the separation of powers: Congress writes the laws, not the president.
On September 5, 2017, President Trump issued a directive to the Department of Homeland Security (DHS) to initiate an orderly phase out of DACA, with a limited, six-month window during which the department will consider certain requests for DACA and applications for work authorization in accordance with specific parameters outlined by Elaine Duke, the Acting Secretary of DHS. That same day, Attorney General Jeff Sessions announced no renewal applications would be accepted after October 5, 2017, and that any permits set to expire after March 5, 2018 could not be renewed.
The President’s announcement restores the proper role of the legislative and executive branches. In fact, his statement explicitly states, “As President, my highest duty is to defend the American people and the Constitution of the United States of America. At the same time, I do not favor punishing children, most of whom are now adults, for the actions of their parents. But we must also recognize that we are a nation of opportunity because we are a nation of laws.”
Then, on January 9, 2018, in The Regents of the University of California and Janet Napolitano v. U.S. Department of Homeland Security and Elaine Duke, U.S. District Judge William Alsup ordered the administration to resume accepting renewal applications for DREAMers. According to the ruling released by the U.S. District Court for the Northern District of California, DHS was “not in accordance with the law” in its initiation of the rescission of DACA because it was based on the “flawed” legal premise that the agency lacked specific implementation authority. The district court cites the 2014 Office of Legal Counsel of the United States Department of Justice (DOJ) determination that programmatic deferred action is a permissible exercise of the enforcement discretion of DHS to substantiate its decision that DACA falls within the enforcement authority of DHS.
The DOJ responded on January 16, 2018, by filing a notice of appeal in the case, thereby seeking review before the U.S. Court of Appeals for the Ninth Circuit. The Department also expressed its intention to file a petition for a writ of certiorari before judgment in order to seek the direct review in the Supreme Court. Attorney General Sessions stated, “It defies both law and common sense for DACA – an entirely discretionary non-enforcement policy that was implemented unilaterally by the last administration after Congress rejected similar legislative proposals and courts invalidated the similar Deferred Action of Parents of Americans policy – to somehow be mandated nationwide by a side district court in San Francisco. We are now taking the rare step of requesting direct review on the merits of this injunction by the Supreme Court so that this issue may be resolved quickly and fairly for all the parties involved.”
In the interim, it is important to keep in mind that young people – who came into this country through no fault of their own – are at the heart of this issue. For many of them, the United States is the only country they have ever known. The status of these individuals is a complex matter, involving many immigration issues, such as border security and interior enforcement, that previous Congresses have failed to adequately address over the years. I plan to ensure that Congress, with the President’s leadership, will be able to find consensus on a permanent legislative solution that includes ensuring those who have done nothing wrong can still contribute as a valued part of this wonderful country.