On Monday, September 4, 2017, Attorney General Jeff Sessions issued a letter to the Department of Homeland Security to revoke the Deferred Action for Childhood Arrivals program (DACA). The following day, Acting Secretary of Homeland Security Elaine C. Duke issued a memorandum that (1) rescinds the basis for DACA – the June 2012 memo, and (2) sets forward a plan for phasing out DACA.
The DACA program was formally initiated on June 15, 2012 by Janet Napolitano, then-Secretary of Homeland Security. The basis for this program is Napolitano’s policy memorandum, “Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children.” In this memo, she directs the Department of Homeland Security to use its discretion when targeting undocumented immigrants to find childhood arrivals as a “low priority.”
What is the DACA phase out plan?
In her memo, Acting Secretary Duke outlined the particulars of how this revocation of DACA will effect current and pending recipients of the program:
Effective immediately, DHS:
- Will adjudicate—on an individual, case-by-case basis—properly filed pending DACA initial requests and associated applications for Employment Authorization Documents that have been accepted as of the date of this memorandum.
- Will reject all DACA initial requests and associated applications for Employment Authorization Documents filed after the date of this memorandum.
- Will adjudicate—on an individual, case-by-case basis—properly filed pending DACA renewal requests and associated applications for Employment Authorization Documents from current beneficiaries that have been accepted as of the date of this memorandum, and from current beneficiaries whose benefits will expire between the date of this memorandum and March 5, 2018 that have been accepted as of October 5, 2017.
- Will reject all DACA renewal requests and associated applications for Employment Authorization Documents filed outside of the parameters specified above.
- Will not terminate the grants of previously issued deferred action or revoke Employment Authorization Documents solely based on the directives in this memorandum for the remaining duration of their validity periods.
- Will not approve any new Form I-131 applications for advance parole under standards associated with the DACA program, although it will generally honor the stated validity period for previously approved applications for advance parole. Notwithstanding the continued validity of advance parole approvals previously granted, U.S. Customs and Border Protection will—of course—retain the authority it has always had and exercised in determining the admissibility of any person presenting at the border and the eligibility of such persons for parole. Further, U.S. Citizenship and Immigration Services will—of course—retain the authority to revoke or terminate an advance parole document at any time.
- Will administratively close all pending Form I-131 applications for advance parole filed under standards associated with the DACA program, and will refund all associated fees.
- Will continue to exercise its discretionary authority to terminate or deny deferred action for any reason, at any time, with or without notice.
It should be noted that DACA was not intended to be available to persons who entered illegally after 2007. Thus, persons entering the country illegally today, tomorrow or in the future will not be eligible for the wind down of DACA.
For more information on the particulars of this phase out, especially for immigration attorneys and current DACA recipients, see DHS’s Frequently Asked Questions.
Did the Obama Administration have authority to issue DACA?
The Attorney General cites in his letter his legal conclusion that the executive branch lacked constitutional authority to issue such a broad change in immigration policy. In other words, the executive branch unconstitutionally usurped the powers of Congress who has the ultimate authority to change the status of millions of undocumented immigrants by way of new legislation or amending the Immigration and Nationality Act.
The premise is correct: executive branch agencies cannot make law or undermine existing law. However, DACA has not been found by any court to actually be unconstitutional. The most relevant case that would shed light on these DACA challenges is the case United States v. Texas.
United States v. Texas
United States v. Texas was filed by Texas in the United States District Court of the Southern District of Texas and challenged the 2014 Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) program and the 2014 expansion of DACA. (The policy particulars of DAPA and the DACA expansion are no longer relevant because the Southern District of Texas issues a nationwide injunction against the programs, and subsequently DHS rescinded the programs last June, but SCOTUSblog has a great recap.)
At the Texas Tribune, Julián Aguilar reported that the Texas Attorney General threatened to amend the complaint of United States v. Texas to include the June 2012 DACA program. The threat of this legal action is reportedly the reason why the Trump Administration rescinded the DACA program this month.
If the complaint had not been amended to include the original DACA program, United States v. Texas would have been dismissed as moot because of the recession of DAPA and the DACA expansion. (An amended complaint would also be dismissed as moot because of the DACA recession.) However, the challenges to DAPA and the expanded DACA program are the same potential legal challenges to DACA. Because DACA has also been rescinded, no court will decide whether the Obama administration had the authority to issue such a program by way of an agency policy memorandum. However, because DACA was such a broad change to existing immigration policy, its potential challenges are relevant to any executive action that makes any such a similar overhaul.
Causes of Action
The two main legal issues of United States v. Texas that are equally applicable to a DACA challenge are: (1) that the June 2012 memo failed to meet the procedural requirements under the Administrative Procedure Act (APA); and (2) the DACA program violates the Take Care Clause of the Constitution by not enforcing the Immigration and Naturalization Act. Read the final amended complaint here, and the response from the government here.
For the procedural challenge, an agency cannot issue any rules without undergoing the specific notice-and-comment rule making procedures of the APA. The question is whether the June 2012 DACA memorandum is in fact a “rule.” A “rule” is a directive issued by an agency or the President that is “binding.” Thus, if a directive is binding, it is a rule; and a rule must follow APA notice-and-comment procedures. Policy statements are not considered “rules,” because they are not considered “binding.” Policy statements are agency statements on how an agency will take an investigative or enforcement action. A policy statement is not binding on agencies if it emphasizes case-by-case discretion, factors, and vague guidance. Here, the June 2012 DACA memo is described as “discretionary” to be used “on a case-by-case basis.” However, there are also particular bright lines, such as the qualifications for undocumented individuals. There is no definitive answer as to whether the DACA discretion was truly discretionary without reviewing the statistics of how these cases were handled.
For the substantive challenge, the June 2012 memo that allows prosecutorial discretion to consider qualifying undocumented immigrants as “low priority.” The question is whether this discretion is tantamount to failing to execute the Immigration and Naturalization Act, specifically 8 U.S. Code § 1225. The Take Care Clause of the Constitution, Article II Section 3, states that the President “shall take care that the laws be faithfully executed.” This preserves Congress’s power and authority to pass laws by assuring that they will be executed by the executive branch. At the Constitution Center, Lyle Dennison notes that the Supreme Court has never sufficiently explained what the Take Care Clause demands of the executive branch. The key question that Dennison identifies is what the term “faithfully” means as a modifier of the verb “execute.” If the Clause merely said “execute,” then the executive branch has no discretion on how it executes legislation. But, the terms “faithfully” has not yet – and will not in the context of DACA – be presented before the Court.
While the constitutionality of DACA will not be challenged in court because it has been rescinded, its recession will likely face opposition from immigration advocacy organizations. The issues raised regarding its procedural (APA notice-and-comment rulemaking) and substantive (Take Care Clause) merit may come up again during these lawsuits because the question of whether the Obama administration has sufficient authority to issue DACA is unanswered.