This column by ACRU General Counsel Ken Klukowski was published September 5, 2017 by Breitbart.
Defenders of DACA are ignoring the fact that it violated two federal statutes and the U.S. Constitution. President Donald Trump was legally required to end it, and doing so helps restore the rule of law on the vitally important issue of immigration policy.
On June 15, 2012, President Barack Obama created by executive fiat the Deferred Action for Childhood Arrivals (DACA). He accomplished this by having Homeland Security Secretary Janet Napolitano announce that certain illegal aliens who entered the United States as children — usually when their parents entered the country illegally — could request “deferred action” on deporting them if they met certain criteria.
Virtually everyone who met those minimal standards was granted this deferred status, which could be renewed every two years, and received work permits to have an American job. Many of the affected individuals are now adults — the average age of a so-called “DREAMer” is 25—seeking work reauthorization to stay in this country indefinitely.
Pundits can argue about the politics of DACA, and they can argue about the policy. President Trump made clear that he empathized with those who were brought here as children, and that on humanitarian and equitable grounds what to do about DACA was a difficult challenge for him.
But no one should debate whether DACA is legal. The bottom line is that only Congress can make immigration law. Because DACA was a purely executive action, the program violates two federal statutes — the Administrative Procedure Act (APA) and the Immigration and Nationality Act (INA) — as well as the Take Care Clause of the U.S. Constitution.
President Trump is following the law and upholding his oath of office by ending DACA.
First, the APA. For the federal government to promulgate public policy through executive action, it must go through the APA process. This federal law required the Obama administration first to give public notice that it intended to create new policy, then publish the proposed regulations in the Federal Register. Then the U.S. Department of Homeland Security (DHS) was required to allow several months for public comment, during which everyone from concerned private citizens to industry leaders, think tanks, academic experts, and other stakeholders could file detailed comments and criticisms with the agency. DHS would then issue revised rules that account for those comments, or provide an explanation for why the criticisms were unfounded. Only then can the government issue final rules which carry the force of law.
The APA requires all these steps to ensure public transparency, and to provide a paper trail that can then be reviewed by a court if any stakeholder who is adversely affected by the new regulations files a lawsuit.
DACA never went through the APA rulemaking process with its notice-and-comment requirements. Whether it is good policy or bad policy, this failure alone makes it illegal.
Second, DACA violates the INA. That 1952 statute — which has been repeatedly amended when Congress decides to change standards — comprehensively sets forth Congress’s immigration policy for who can enter this country, for how long, and under what circumstances.
Article I, Section 8, Clause 4 of the Constitution exclusively vests in Congress alone the authority to set immigration policy for the United States. The INA is the statute through which Congress sets forth that policy for the entire nation.
DACA creates public policy for certain aliens regarding immigration that is incompatible with the INA. Even if the Obama administration had followed the APA’s notice-and-comment procedural requirements to enact DACA, it would still have been struck down on substantive grounds because the regulations would have violated the INA, and therefore would be contrary to law.
Third, DACA violates the Constitution’s Take Care Clause. Article II, Section 3 of the Constitution commands that the president “shall take Care that the Laws be faithfully executed.” That means that whatever laws Congress passes, every president is bound to do his level best to carry out those laws as fully as possible, and to defend those laws if they are challenged in court.
The federal government does not have the resources to fully investigate and prosecute every possible violation of every federal law, so executive officers use “prosecutorial discretion” to direct their resources to where they will do the most good. That was the excuse the Obama administration used, calling DACA an exercise of “discretion.”
DACA is not discretionary, however. When DACA’s program was expanded to cover millions more adults in the program called DAPA (“Deferred Action for Parents of Americans and Lawful Permanent Residents”), dozens of states sued. The U.S. Court of Appeals for the Fifth Circuit found that almost all of the illegal aliens who met the “guidance” criteria were granted amnesty in a rubber-stamp fashion, and held that DAPA was an actual change in immigration law, not a discretionary resource-allocation guideline on how to enforce the policy Congress wrote into federal law.
The differences between DAPA and DACA are differences in degree only, not in kind. That is why Attorney General Jeff Sessions (correctly) said that DACA is “vulnerable to the same legal and constitutional challenges that the court recognized with respect to the DAPA program.”
DACA thus represents a president’s deliberate choice not to faithfully enforce federal law. So even if DACA had been created in the manner required by the APA and was also allowed by the INA, it would still be illegal because it violates the Constitution’s Take Care Clause.
President Trump made the decision that the Constitution and federal law required. This does not mean that all the impacted individuals will be deported. What is does mean, however, is that Congress makes the decision of who can be in this country, not the president.
That is why criticizing the president’s decision is astounding. President Obama broke the law, and now President Trump is ending that lawless policy.
The DACA debate now goes to the branch of the federal government that had jurisdiction over it all along. President Trump deserves high praise for a decision that not only fulfills a campaign promise, but also restores the rule of law on immigration policy.