by Lisa Soronen, executive director, State & Local Legal Center

Since his presidency began, Donald Trump has been rolling back (or trying to roll back) many of the actions of President Obama. Sometimes (at least in theory) it is easier (practically if not politically) to do this than other times.

The Deferred Action for Childhood Arrivals (DACA) program allowed undocumented persons who arrived in the United States before age 16 and have lived here since June 15, 2007, to stay, work, and go to school in the United States without facing the risk of deportation for two years with renewals available.  

DACA was established through a Department of Homeland Security (DHS) Memorandum during the Obama presidency. Getting rid of a statute requires action by Congress or the U.S. Supreme Court. Getting rid of regulations requires going through the Administrative Procedures Act lengthy notice-and-comment process. Getting rid of an agency memorandum requires issuing a superseding memorandum, which DHS has done.    

The Trump administration has essentially given Congress six months to save DACA. DHS will continue to renew DACA permits for that time period.   

While undoubtedly political motives have been and will be attributed to the president’s decision, part of his decision (particularly the timing of it) was likely affected by legal considerations. Eleven (now 10) attorneys general threatened to sue the federal government if DACA  was not rescinded by September 5, 2017.

Their argument is that the DACA program is unconstitutional and unlawful overreach by the president. They point to how some courts have viewed the Deferred Action for Parents of Americans (DAPA) (granted similar deferred status to undocumented parents of American children) and Expanded DACA (eliminated the age ceiling; applied to anyone residing here on or after January 1, 2010).

Courts blocked DAPA and Expanded DACA from going into effect, holding that the Executive Branch does not have the unilateral power to confer lawful presence and work authorization on unlawfully present aliens simply because the Executive chooses not to remove them. Rather, ‘[i]n specific and detailed provisions, the [Immigration and Nationality Act] expressly and carefully provides legal designations allowing defined classes of aliens to be lawfully present.’ ‘Entirely absent from those specific classes is the group of 4.3 million illegal aliens who would be eligible for lawful presence under DAPA.’ Likewise, ‘[t]he INA also specifies classes of aliens eligible and ineligible for work authorization . . . with no mention of the class of persons whom DAPA would make eligible for work authorization.’

Attorney General Jeff Sessions embraced similar reasoning in a September 4 letter to the acting secretary of DHS.

Twenty attorneys general joined a letter supporting DACA. They quote (conservative) Justice Scalia as writing the Executive has a long history of “engaging in a regular practice . . . of exercising [deferred action] for humanitarian reasons or simply for its own convenience.” They point out that legal challenges to DACA have not been successful and that DACA and DAPA are not identical.

If avoiding a lawsuit was part of the president’s plan, he might not be successful. So far two state attorneys general have vowed to sue if DACA is rescinded.