In announcing the winding down of the Deferred Action for Childhood Arrivals (DACA) program, the President yesterday said in part:
The legislative branch, not the executive branch, writes these laws – this is the bedrock of our Constitutional system, which I took a solemn oath to preserve, protect, and defend.
In June of 2012, President Obama bypassed Congress to give work permits, social security numbers, and federal benefits to approximately 800,000 illegal immigrants currently between the ages of 15 and 36. The typical recipients of this executive amnesty, known as DACA, are in their twenties. Legislation offering these same benefits had been introduced in Congress on numerous occasions and rejected each time.
In referencing the idea of creating new immigration rules unilaterally, President Obama admitted that “I can’t just do these things by myself” – and yet that is exactly what he did, making an end-run around Congress and violating the core tenets that sustain our Republic.
Officials from 10 States are suing over the program, requiring my Administration to make a decision regarding its legality. The Attorney General of the United States, the Attorneys General of many states, and virtually all other top legal experts have advised that the program is unlawful and unconstitutional and cannot be successfully defended in court.
There can be no path to principled immigration reform if the executive branch is able to rewrite or nullify federal laws at will.
So is this right (that is, that DACA is illegal)? At Volokh Conspiracy, Ilya Somin, anticipating this argument, says no:
In part because the moral and policy case for DACA is so strong, many opponents of the program tend to focus on legal considerations. DACA does not in fact change any law or legalize any previously banned activity without congressional approval. It merely suspends enforcement of a law against a particular category of migrants. Nonetheless, critics claim that it was illegal for the executive to adopt DACA without congressional authorization. I addressed this issue in some detail back when DACA was first announced in 2012.
Most of the points I made in this 2016 article defending the legality of Obama’s later DAPA policy (which was rescinded by Trump in June) also apply with even greater force to DACA, since the latter is a much more limited program. Wide-ranging presidential enforcement discretion is unavoidable in a system where there is so much federal law and so many violators that the executive can only target a small fraction of them. In the 2016 article, I explain why presidents have the power to exercise their discretion systematically as well as on a “case-by-case” basis.
While this may be right as a general matter, it seems wrong as applied to DACA. As I understand it, it’s not the case that DACA “merely suspends enforcement of a law against a particular category of migrants.” In The Hill, Hans von Spakovsky and David Inserra argue:
Unilaterally created by President Obama, DACA provides pseudo-legal status to illegal aliens brought to the U.S. as minors. It gives them a promise that they won’t be deported, as well as providing them with work authorizations and access to Social Security and other government benefits.
… [T]he federal courts prevented President Obama from implementing the similar “Deferred Action for Parents of Americans and Lawful Permanent Residents” program or DAPA. Like DACA, DAPA provided an administrative amnesty for illegal aliens and gave them work authorizations and access to government benefits.
The Fifth Circuit Court of Appeals upheld the injunction entered by a lower federal court against the DAPA program. Under our Constitution, Congress has plenary authority over immigration; the president only has authority that has been delegated to him by Congress. As the Fifth Circuit said, the fact that the president declined to enforce the law and remove illegal aliens “does not transform presence deemed unlawful by Congress into lawful presence and confer eligibility for otherwise unavailable benefits based on that change.” Obama acted beyond his constitutional authority when he provided through DAPA pseudo-amnesty and government benefits that had not been authorized by Congress.
The DACA program suffers from exactly the same constitutional infirmity.
That seems right as far as it goes. As I’ve argued before, if DACA (and DAPA) provide affirmative benefits to undocumented immigrants (as they appear to do — I’ve never heard any defender of the programs specifically show that they don’t), then the programs cannot be defended as exercises of prosecutorial discretion. The historical conception of prosecutorial discretion is simply that the executive would decline to prosecute. The potential target of the prosecution would gain no change in legal status, because the executive power did not extend to changing legal status. All the target would get is temporary and contingent relief from prosecution.
But von Spakovsky and Inserra also stop well short of proving their point. Assuming they are right about DACA’s effects, they are right that the President cannot implement the program without congressional approval. However, they assume there has been no congressional approval. Perhaps so, but the immigration statutes are voluminous and convey enormous discretion to the President. If that discretion includes authority to establish DACA, then DACA is constitutional.
Professor Somin does make this argument, albeit as a sort of throwaway at the end of his recent post:
I also note [in the 2016 analysis] that the policy of giving DACA and DAPA recipients work permits actually does have congressional authorization, based on a 1986 law that specifically permits employment of aliens who are “authorized … to be employed … by the attorney general.”
But that gets the emphasis backwards: the whole argument for DACA depends (or should depend) on whether the President has congressional authorization.
It’s true, as von Spakovsky and Inserra say, that the Fifth Circuit found that DAPA was unauthorized on administrative law grounds (not as a constitutional matter), but that decision was affirmed by an equally divided Supreme Court and isn’t necessarily right. Defenders of the DACA program would need to say it’s wrong, or to distinguish DACA from DAPA.
In sum, much of the commentary on both sides fails to get the argument entirely right. The President does not have independent executive power to change the legal status of DACA beneficiaries. Trying to locate such an authority in the power of prosecutorial discretion is misconceived, even if one has a broad view of prosecutorial discretion. But the President might have a delegated authority to change the legal status of DACA beneficiaries, depending on how one reads the immigration statutes (and as a constitutional law scholar, I do not have an opinion on that question).
NOTE: This post was originally published at The Originalism Blog, “The Blog of the Center for the Study of Constitutional Originalism at the University of San Diego School of Law,” and is reposted here with permission from the author.