Trump Decision to End DACA Misguided and Shortsighted


The September 5, 2017 decision by President Donald Trump to rescind Deferred Action for Childhood Arrivals (DACA) has devastated the 800,000 young people who five years ago were granted a reprieve from removal and an opportunity to study, work, and live in the United States. Over the last five years, these young men and women have demonstrated their resolve to embody the American Dream; they have completed university careers, have worked, paid taxes, purchased homes, and started their own families in the U.S. Now faced with the prospect of removal to countries to which they have no discernible ties, and some to countries where they do not speak the language, DACA recipients feel betrayed, and rightfully so.

Under the guise of righting a constitutional wrong that does not exist, the Trump administration has bartered the lives of the innocent for a few political points from a xenophobic base that is unlikely to understand the devastating effects of rescinding DACA. Nothing highlights the pretextual nature of rescinding DACA than the statement made by Attorney General Jeff Sessions on Tuesday morning.

In previous statements, Sessions has tried to shroud his nativist leanings by arguing that the DACA executive order was unconstitutional, but Tuesday’s statement reaffirmed the suspicions many in the immigration community have had; the constitutional argument was shaky at best and completely disingenuous. Sessions’ statement paid brief lip service to the unconstitutional nature of the executive order by misrepresenting DACA as a policy “implemented unilaterally to great controversy,” as a program “inconsistent with the Constitution’s separation of powers,” and “vulnerable to the same legal and constitutional challenges that the courts recognized with respect to the DAPA program.” However, in 2012, when the DACA executive order was promulgated the controversy was not its implementation but rather Congress’ failure to pass comprehensive immigration reform. Establishing DACA was not “an open-ended circumvention of immigration laws” and “an unconstitutional exercise of authority by the Executive Branch,” but rather the exercise of the long-established constitutional executive power of prosecutorial discretion.

Deferred action is a discretionary measure that falls in line with the Presidential power of enforcement. Article II Section Three of the Constitution has been interpreted by the Supreme Court as the source of the executive branch’s power of prosecutorial discretion. DACA is not the first time deferred action has been granted and certainly not the last. Wide-scale deferred action programs were previously authorized by Presidents Ronald Reagan and George H. W. Bush, permitting family members of those granted amnesty in 1986 to avoid removal and remain in the U.S. Additionally, the power of the executive branch to grant deferred action based upon humanitarian considerations continues to be in place, but this is not a fact the American people are likely to hear from Jeff Sessions. Moreover, stating that DACA was susceptible to constitutional attacks like DAPA is a false statement as the case was halted at the preliminary injunction phase and DAPA’s constitutionality was not definitively decided.

With the understanding that the constitutional attacks against DACA are baseless, the core of Session’s statement was veiled in mischaracterizations of the program, including that DACA grants “legal status” and “executive amnesty.” Yet, nothing could be further from the truth. DACA grants recipients a period of authorized stay, providing lawful status and work authorization only during its validity period. DACA never provided a path to lawful permanent resident status or to U.S. citizenship. True amnesty, a pathway to legalization, was last provided in large scale by the Immigration Reform and Control Act (IRCA) which was signed into law by Ronald Reagan in 1986. Other acts of immigration clemency like protection under 245(i) and NACARA were more limited.

Additionally, Session’s contention that DACA provides full legal status belies the reality of the benefits granted to its recipients. DACA permits its recipients to receive work authorization and grants eligibility to continue their education beyond high school. Yet, recipients are ineligible to receive federal financial aid, grants, and scholarships. This means that many DACA recipients paid for their schooling out of pocket. The DACA program also precluded many young men and women from receiving a plethora of federal and state benefits. It also kept DACA recipients from certain jobs and a few states made them ineligible for drivers’ licenses up until 2015.

Sessions’ statement mischaracterized the program further by implying that the program was not delimited and the eligibility criteria had incentivized other immigrants to enter the U.S. illegally. He stated, “The effect of this unilateral executive amnesty…contributed to a surge of unaccompanied minors on the southern border that yielded terrible humanitarian consequences.” However, the realities of the program do not fit the nativist narrative presenting DACA as a blanket amnesty encouraging more individuals to enter the U.S. illegally. The reality is that DACA established strict criteria for eligibility. The DACA recipient must have entered the U.S. before the age of 16, must have been present in the U.S. on June 15, 2012, must have been present continuously since June 15, 2007, and most importantly meet criteria related to their education and criminal history. The program made clear that the population of DACA recipients was already present in the U.S. at the time of its announcement. Furthermore, the surge in unaccompanied minors entering the U.S. had nothing to do with DACA. The surge of unaccompanied minors was a result of the gang violence that now plagues Central America. Moreover, this surge began in 2008. The unaccompanied children who entered in 2008 were ineligible to receive DACA because they do not meet one of the essential criterion of the program, continuous presence since June 15, 2007.

In addition to misrepresenting the nature of the program, the DACA rescission statement failed to acknowledge that DACA added many more people to the U.S. workforce who were making positive contributions to the economy. Sessions’ statement made the unfounded argument that DACA recipients displaced American workers. He contends that the DACA program “denied jobs to hundreds of thousands of American by allowing those same jobs to go to illegal aliens.” There is no data to support the veracity of this statement. It also obfuscates the nature of the economy by presenting jobs as a zero-sum game in which every job extended to a DACA recipient took a job from an American worker. This is the same xenophobic tirade that immigrants, including legal immigrants, have heard time and time again to justify disparate treatment and explain a downturn in the economy.

Sessions paints rescinding DACA as a solution for improving the lives of millions of Americans and the economy. In fact, evidence suggests that the opposite is true. Estimates from the CATO Institute suggest that ending DACA could cost the U.S. economy billions of dollars. DACA recipients have contributed billions of dollars in federal, state, and local taxes and removing them from the legal workforce would create a significant void in the U.S. economy. All the DACA recipients are not in removal proceedings, meaning that many of these individuals will not face immediate removal from the U.S. and will be added to the undocumented workforce. The undocumented workforce is frequently exploited by employers and paid less than their employment authorized counterparts.

Sessions’ statement also makes claims as to how rescinding DACA would ultimately lead to a more secure country. He stated, “Enforcing the laws saves lives, protects communities and taxpayers, and prevents human suffering.” He added, “Failure to enforce the laws in the past has put our nation at risk of crime, violence and even terrorism.” However, increasing the number of individuals who are not protected from removal has now created a population that is mistrustful of the government and the authorities. Surveys have shown that an increasing number of undocumented individuals are less likely to report crimes. Rescinding DACA has only ensured that there will be more individuals concerned with being removed rather than the safety of the U.S.

The DACA program was a successful initiative that fell in line with the Obama administration’s enforcement priorities. It fell squarely within the President’s administrative authority and brought an economic uptick by granting thousands work authorization. As a humanitarian action, it also gave a glimmer of hope to those children who were brought to the U.S. and have known no other home. Now, documented and undocumented alike face the consequences of this shortsighted action intended as a consolation prize for a U.S.-Mexico wall that has an infinitesimal likelihood of coming to fruition.