DACA is not unconstitutional

The Trump administration's case against the DACA program is nonsense.

CREDIT: AP Photo/Pablo Martinez Monsivais
CREDIT: AP Photo/Pablo Martinez Monsivais

The Trump administration announced on Tuesday that it will end the Deferred Action for Childhood Arrivals (DACA) program, which allows approximately 800,000 undocumented immigrants who came to the United States as children to live and work openly without fear of deportation. The White House also plans to delay the end of DACA for six months.

In a telling sign of how the administration wants to justify this decision, Attorney General Jeff Sessions announced DACA’s fate at a news briefing Tuesday morning, referring to the program as an “unconstitutional exercise of authority by the executive branch.”

Many members of President Donald Trump’s inner circle believe that DACA is unconstitutional. The Department of Homeland Security has also cited the possibility that an anti-immigrant judge in Texas may order an immediate end to the DACA program as justification for winding it down more gradually.

The legal case against DACA, however, is nonsense. If Trump believes that the program is bad policy, then he should make that case to the American people. But he should not be allowed to claim a legal justification for a political decision.


The DACA program was created by the Obama administration through a 2012 executive action — that is, the executive branch relied on a combination of its own authority and the powers delegated to it by Congress in order to form DACA. Indeed, the case for or against DACA isn’t really a constitutional case at all. It is a question of whether federal laws enacted by Congress permitted the Obama administration to act as it did.

As Justice Robert Jackson famously wrote in Youngstown Sheet & Tube Co. v. Sawyer, “when the President acts pursuant to an express or implied authorization of Congress, his authority is at its maximum, for it includes all that he possesses in his own right plus all that Congress can delegate.” Should a presidential action be held unconstitutional under these circumstances, “it usually means that the Federal Government as an undivided whole lacks power” to act as the president wishes to act.

No one seriously argues that the federal government as a whole does not have the power to permit certain undocumented immigrants to live and work in the country. Indeed, if the federal government did not have this power, it is unclear how we could have any immigration policy at all.

It’s tempting to think of DACA as a single act of the executive branch — the government offers certain immigrants a package of benefits as part of a single, unified program. Legally, however, it is a mistake to envision DACA this way. The program offers its beneficiaries a basket of certain freedoms, including security against deportation, permission to work in the United States, and the opportunity to become eligible for Social Security and Medicare benefits after 10 years of working and paying taxes. So the proper legal question is whether the executive branch has the authority to offer each of these benefits on their own.

Permission to remain in the United States

The question whether the executive can simply choose not to deport certain individuals turns out to be very easy. As the Supreme Court explained in Arizona v. United States, “a principal feature of the removal system [used to remove immigrants from the country] is the broad discretion exercised by immigration officials.” When confronted with an immigration who is eligible for deportation, executive branch officials still must decide “as an initial matter, must decide whether it makes sense to pursue removal at all.”


As a practical matter, moreover, the administration could not remove everyone who is subject to deportation even if it wanted to. As the Obama administration explained in a memo justifying its efforts to expand DACA-like relief more broadly, “there are approximately 11.3 million undocumented aliens in the country,” but Congress only appropriated enough resources “to remove fewer than 400,000 such aliens each year.”

If Congress had wanted the executive to round up every undocumented immigrant in the country, rather than prioritizing certain immigrants over others, it would have appropriated enough money to make such mass deportations possible.

Indeed, it is significant that, when a group of states led by Texas sued the Obama administration to shut down its expansion of DACA-like relief, it did not challenge an Obama-era document instructing immigration officials to focus their enforcement on undocumented individuals who are national security threats, criminals, or who similarly endanger the “public safety.”

Texas even conceded that the administration could notify beneficiaries of a program like DACA that they enjoy a kind of privileged position among undocumented immigrants. A lower court’s injunction challenging Obama’s immigration authority, Texas explained, “does not require the Executive to remove anyone, and it does not touch the removal prioritization memorandum. The Executive has been free all along to issue ‘low-priority’ identification cards to aliens.”

Work authorization, Social Security, and Medicare

Having established that the executive does have the unilateral authority to permit certain undocumented immigrants to remain in the country — a process known as “deferred action” — the rest of the benefits afforded to DACA beneficiaries flow from federal law. Federal regulations promulgated in 1981, for example, list “an alien who has been granted deferred action” as one of several kinds of immigrants who may “apply for employment authorization” from the federal government.


These regulations were effectively ratified by Congress in 1986, when Congress enacted a “comprehensive scheme prohibiting the employment of illegal aliens in the United States.” Notably, this law includes an explicit exemption for non-citizens “authorized to be so employed . . . by the Attorney General.” (Subsequent legislation transferred this power to the Secretary of Homeland Security.)

A similar law governs Social Security and Medicare benefits. Though federal law ordinarily provides that “an alien who is not a qualified alien . . . is not eligible for any Federal public benefit,” the same law allows Social Security and Medicare benefits to be paid “to an alien who is lawfully present in the United States as determined by the Attorney General” (a power that, again, was later transferred to the Secretary of Homeland Security).

In fairness, the case for providing Social Security and Medicare benefits to DACA beneficiaries is a little weaker than the case for the other benefits. A somewhat esoteric argument can be made that DACA beneficiaries are not “lawfully present” within the United States, and therefore cannot be determined to be as much by federal officials. But even if this argument is correct, that does not change the fact that the lion’s share of DACA’s benefits — the ability to live in America openly and work freely — are firmly within the executive branch’s authority.

Nothing requires Trump to sweep so broadly as to cancel clearly lawful benefits in order to prevent DACA beneficiaries from receiving a benefit that is, at least arguably, unlawful.

Although there is no real legal case against the bulk of DACA (and only an arguable basis for an attack on one small part of DACA), the Supreme Court divided 4-4 along party lines in a 2016 case challenging programs similar to DACA. Now that Neil Gorusch, a rigid conservative, occupies a seat on the Court, it is likely that there are five votes to strike down the program.