It is old news now but the Trump Administration has terminated President Obama’s Executive Order granting deferred departure and work authorization to the so-called “Dreamers”: those children brought into the US by their parents without legal status.
Before we look at what all this means, and what may happen during the six-month reprieve granted by President Trump, it is first important to understand what DACA is not. Its opponents claimed that President Obama’s Order violated the Constitution because only Congress can “grant a benefit” or expand deferred departure. However, neither of these positions are legally or factually correct.
The “creation of a benefit” argument is clearly incorrect, which is obvious to anyone involved in the immigration process. The Immigration Service, as part of the Executive Branch, has created many benefits not approved by Congress. For example, the old INS created optional practical training as a form of work authorization after graduation by F-1 foreign students. In fact, the current USCIS has vastly expanded on this benefit with the recent “STEM” extensions to optional practical training. This is but one example of thousands of benefits which federal agencies grant routinely. The fact that the benefit is granted via regulation, agency internal memos or operating instructions does not change the fact that the Executive Branch creates “benefits” outside the authority of Congress on a consistent and entirely legal basis.
The argument that President Obama’s Order illegally expanded deferred departure is equally without legal or factual basis. Deferred departure was created by the old INS in the Service’s Operations Instructions and was later assumed as part of the Service’s prosecutorial discretion. Congress has known about this practice for literally decades and never questioned this policy in any way, let alone legislated against it. Logically, there is no distinction between the grant of prosecutorial discretion to one person or 800,000 if they all meet the same criteria. To require a case-by-case order for each one is no different than allowing the beneficiary of the policy apply along with all others who meet the same requirements.
However, just because there is no valid argument against the DACA program does not mean that President Trump does not have the authority to terminate it, which he clearly has and has so determined. But the reasons against President Trump’s termination are moral and civil, not to mention what used to be called “doing the right thing.” These are the things this President and the Congresses for the past almost 20 years fail to grasp. Just today, Iowan Congressman Steve King, a Republican Trump supporter, stated that the “Dreamers” can now go “back in the shadows” and they should stay there since they illegally entered the country. The fact that they were all children brought in by parents or other adults makes no difference to Mr. King. And there are many just like him in the US and our Congress. It is these short-sighted, morally lite people that will cause DACA to die.