Many in the media, in Hollywood, and in government, have often portrayed illegal aliens in a sympathetic light. Calling them “hard working,” or “in search of a better life,” while also using descriptions such as “refugees,” those who enter our country without legal status often have more positive publicity than many celebrities.
But of all those here illegally, none has stirred more overall sympathy than children who were brought here by illegal alien parents. Many have grown up in this country, do not speak their native languages fluently, and think of themselves as American. Most hearts go out to such people – can’t something be done to make an exception for these children?
Building on this sentiment, in June of 2012, then-President Barak Obama announced an initiative “to mend our nation’s immigration policy, to make it more fair, more efficient, and more just — specifically for certain young people sometimes called ‘Dreamers.’” He described the “Dreamers” as “Americans in their heart, in their minds, in every single way but one: on paper. They were brought to this country by their parents — sometimes even as infants — and often have no idea that they’re undocumented until they apply for a job or a driver’s license, or a college scholarship.”
Obama described the sympathy for these “Dreamers” as “what gave rise to the DREAM Act. It says that if your parents brought you here as a child, if you’ve been here for five years, and you’re willing to go to college or serve in our military, you can one day earn your citizenship.” However, while “Democrats passed the DREAM Act in the House…Republicans walked away from it. It got 55 votes in the Senate, but Republicans blocked it.”
Rather than acknowledge that under our Constitution, Congress makes the laws, and the President is tasked with the enforcement of those laws, Obama unilaterally decided that “(i)n the absence of any immigration action from Congress to fix our broken immigration system…the Department of Homeland Security is taking steps to lift the shadow of deportation from these young people. Over the next few months, eligible individuals who do not present a risk to national security or public safety will be able to request temporary relief from deportation proceedings and apply for work authorization.”
At the time, Obama also said “this is not amnesty, this is not immunity. This is not a path to citizenship. It’s not a permanent fix. This is a temporary stopgap measure that lets us focus our resources wisely while giving a degree of relief and hope to talented, driven, patriotic young people.”
In keeping with this statement, then-Secretary of Homeland Security, Janet Napolitano, issued a Memorandum describing “how, in the exercise of our prosecutorial discretion, (DHS) should enforce the Nation’s immigration laws against certain young people who were brought to this country as children and know only this country as home.” The Memorandum goes on state that “these individuals lacked the intent to violate the law and our ongoing review of pending removal cases is already offering administrative closure to many of them. However, additional measures are necessary to ensure that our enforcement resources are not expended on these low priority cases but are instead appropriately focused on people who meet our enforcement priorities.”
Initially, since the majority of these “Dreamers” were largely sympathetic, there wasn’t any serious attempt to invalidate Obama’s actions despite their unlawful nature; that is, until November of 2014, when Homeland Security attempted “expanding certain parameters of DACA and issuing guidance for case-by-case use of deferred action for those adults who have been in this country since January 1, 2010, are the parents of U.S. citizens or lawful permanent residents, and who are otherwise not enforcement priorities.”
This expansion of what had been described by Obama as a “temporary stopgap measure” was challenged by several states, and in November of 2015, in State of Texas v United States, the Fifth Circuit upheld the District Court’s injunction against implementation of the “Deferred Action for Parents of Americans and Lawful Permanent Residents program (‘DAPA’).” As described by the Fifth Circuit, “The states sued to prevent DAPA’s implementation…they asserted that DAPA…did not undergo the requisite notice-and-comment rulemaking….that DHS lacked the authority to implement the program even if it followed the correct rulemaking process (and) that DAPA was an abrogation of the President’s constitutional duty to ‘take Care that the Laws be faithfully executed.’ U.S. CONST . art. II, § 3.”
Putting aside the failure to engage in any notice or commentary period before implementation of the new policy, in particular, the Fifth Circuit found that “DAPA would have a major effect on the states… causing millions of dollars of losses in Texas alone, and…in Texas, the causal chain is especially direct: DAPA would enable beneficiaries to apply for driver’s licenses, and many would do so, resulting in Texas’s injury.” Further, “(i)f 500,000 unlawfully present aliens residing in Texas were reclassified as lawfully present pursuant to DAPA, they would become eligible for driver’s licenses at a subsidized fee. Congress did not intend to make immune from judicial review an agency action that reclassifies millions of illegal aliens in a way that imposes substantial costs on states (like Texas).”
As stated by the Fifth Circuit, “DAPA would make 4.3 million otherwise removable aliens eligible for lawful presence, employment authorization, and associated benefits, and ‘we must be guided to a degree by common sense as to the manner in which Congress is likely to delegate a policy decision of such economic and political magnitude to an administrative agency.’ DAPA undoubtedly implicates ‘question[s] of deep ‘economic and political significance’ that [are] central to this statutory scheme; had Congress wished to assign that decision to an agency, it surely would have done so expressly.'”
In other words, the DAPA expansion was an act in excess of the authority granted to the Secretary of Homeland Security by Congress.
But what about DACA itself? Wasn’t this also an unconstitutional overreach? Recently, the Fifth Circuit has provided us with an answer.
Once more led by Texas, a group of 26 states sued to invalidate DACA. As described by the Fifth Circuit in State of Texas v. United States, (DACA) the lower court concluded that DACA was “‘in excess of statutory jurisdiction’ and ‘short of statutory right’ . . . .because ‘Congress’s clear articulation of laws for removal, lawful presence, and work authorization illustrates a manifest intent to reserve for itself the authority to determine the framework of the nation’s immigration system.’”
“DACA creates a new class of otherwise removable aliens who may obtain lawful presence, work authorization, and associated benefits,” the Fifth Circuit reasoned. “Congress determined which aliens can receive these benefits, and it did not include DACA recipients among them. We agree with the district court’s reasoning and its conclusions that the DACA Memorandum contravenes comprehensive statutory schemes for removal, allocation of lawful presence, and allocation of work authorization.”
However, despite the illegal overreach of the Obama Administration’s “temporary stopgap measure’ in 2012, the new ruling from the Fifth Circuit is not the end of DACA.
In August of 2022, DHS issued a “Final Rule,” effective at the end of October, 2022, which purports to establish regulations to preserve and fortify (DACA) policy to defer removal of certain noncitizens who years earlier came to the United States as children.” While the Fifth Circuit was asked to find the “Final Rule” equally invalid, the Court decided to remand the matter to the lower court for further proceedings. “We do not have the administrative record before us,” the Court stated. “We cannot determine whether there are material differences in that record and the record before the district court regarding the 2012 DACA Memorandum…(a) district court is in the best position to review the administrative record in the rulemaking proceeding and determine whether our holdings as to the 2012 DACA Memorandum fully resolve issues concerning the Final Rule.”
Further, while the Fifth Circuit found the original DACA Memorandum of 2012 to be an unconstitutional overreach, the Court did not invalidate DACA completely. In fact, reversal of the policy was not something the States had requested. Instead, “(t)he remedy the States ultimately seek is to ‘phase out the DACA program within two years.’ They do not seek to ‘require the Executive to immediately rescind any existing DACA permits that confer lawful presence or work authorization.'” Instead, “Plaintiff States are amenable to an injunction that prospectively enjoins Defendants in the future from renewing or issuing any new DACA permits.”
Why not end the “temporary stopgap measure” of DACA immediately? As described in the “Final Rule.” “Since 2012, more than 825,000 people have received deferred action under the DACA policy… DACA recipients have grown into adulthood and built lives for themselves and their loved ones in the United States. They have gotten married and had U.S. citizen children. Over 250,000 children have been born in the United States with at least one parent who is a DACA recipient, and about 1.5 million people in the United States share a home with a DACA recipient… In reliance on DACA, its recipients have enrolled in degree programs, started businesses, obtained professional licenses, and purchased homes.”
With the potential to disrupt the lives of that many people, DACA will not be ended anytime soon. Instead, the best one can hope for is a moratorium on new submissions for a deferral, and a gradual phase out of the program.
In 2012, the Obama Administration instituted a lawless process to grant backdoor status to a select group of illegal aliens, and described it as a “temporary stopgap measure.” Now, 10 years later, rather than disrupt the lives of people who have come to rely upon the deferral, the Courts have allowed this overreach of authority to stand.
The lessons are clear. Any illegal usurpation of authority by the President and his Secretaries must be addressed immediately, before the policy is relied upon by its beneficiaries. Think, for example, of those who receive forgiveness of all or part of their student loans – will the Courts force those people to return to paying their debts after those debts are forgiven?
Further, we must have a Chief Executive who respects and follows the separation of authority granted to Congress and the President by the United States Constitution.
Finally, never trust anyone who tells you their action is a “temporary stopgap measure.” They are lying.
Judge John H. Wilson served on the bench in NYC
Illustration: Pixabay