Despite having been raised here, having gone to school here, and identifying the United States as their home, these children could not hold a job legally. Often, their ability to go to college was hampered by the lack of legal status. Despite being raised as Americans, they had to live in the shadows, avoiding government attention and working in the underground economy.
DACA recipients were sympathetic. They were stuck in their situation due to now fault of their own. Many were highly talented and very intelligent. If allowed to live and work openly, DACA recipients had great potential.
To address the situation in which these children found themselves, President Obama created DACA. But the program was imperfect as best, and unconstitutional at worst.
DACA is an exercise of deferred action. Deferred action is not a legal status. It does not give a person the legal right to stay in the United States. It is really nothing more than a promise; a promise not to seek the removal of a person, even though that person is present in the United States illegally.
If you search the U.S. Immigration and Nationality Act, you will find that there is no statute that defines deferred action. There is no direct legislative authority for it. All there is in the statute is a reference that those who have received deferred action are eligible to apply for a legal right to work in the United States.
At best, then, deferred action is indirectly authorized by law. But nothing in the law establishes it parameters. Nothing establishes to whom deferred action may be applied, or under what circumstances.
Prior to DACA, deferred action was used mostly as an ad hoc fix when immigration law was imperfect. In many cases, deferred action was applied on a case by case basis, for humanitarian purposes when immigration law had harsh results. On occasion, deferred action was applied on a larger scale but on a temporary basis when an immigration program came to an end. Special protections were granted by law to Liberians in the United States, for example, during the twenty year civil war in their country. When those legal protections expired, President Bush applied deferred action for one year to permit Liberians who had lived in the United States for a long time to adjust to their new situation.
But before DACA, deferred action had never been used to create a program of immigration relief on such a scale. Indeed, the argument is that President Obama overstepped his constitutional authority as chief executive by creating a program that was legislative in nature. In this case, the president had no direct authority from Congress on creating such a program. No criteria was set by Congress on who would qualify for the program. No parameters were established on how long the program would last. President Obama created DACA whole cloth, establishing his own set of criteria for eligibility and his own judgment with respect to the length of the grant of relief.
To be clear, from the moment President Obama announced the creation of DACA, there were serious questions concerning whether he had violated the separation of powers provisions of the Constitution. The constitutionality of DACA was further called into question when the President created similar programs, one aimed at granting deferred action to undocumented parents of U.S. citizens or permanent residents, and one that was an expansion of DACA, which were defeated in federal courts in the waining years of the Administration.
Why then, did President Obama use such an imperfect tool to grant such relief? After all, it was temporary. It granted no legal status. It gave no path to citizenship. It was nothing more than a promise that any succeeding administration could break. It was arguably unconstitutional.
The answer lie in congressional inaction. Legislation had been pending since 2001 to address the situation of children who had been brought to the United States by their parents illegally. It was called the Development, Relief and Education for Alien Minors Act, or the DREAM Act. Despite originally having Republican support, the DREAM Act died in May of 2011. When the DREAM Act failed to pass Congress, President Obama forced the issue by creating a program where this who would have received relief through the legislation would be given deferred action.
President Trump, who publicly expressed support for DACA recipients on numerous occasions, now seems to be on the verge of ending the program. He is doing so despite pleadings by Republican lawmakers, such as Paul Ryan, to give Congress the chance to pass legislation to address the problem. In doing so, he has raised the ire of many in the public who find DACA recipients sympathetic.
The question now is whether President Trump's actions will finally force Congress to enact a legal solution to the problem, or whether DACA recipients will simply be forced to return to the shadows to hide from being deported from the only home they've known.
William J. Kovatch, Jr.
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