Ask Garry: DACA vs Trump | What’s the Future of DACA under the Trump Administration?

Let me start by saying President Trump does not like DACA. Does that comment shock anyone? If it does, then you haven’t been paying attention. The courts have tried to check the President and give it back. The President continues fighting against it. In this article, I will review the recent events on DACA between the administration and the courts.

The History of the DACA Program

Let me start with a refresher on the US government. In the US, the government is divided into three separate branches, the Legislative, Executive and Judicial branches. The Legislative branch passes laws. The Executive Branch enforces those laws. And the Judicial Branch interprets the laws. Each branch is separate and checks the power of the other with the goal of keeping each in balance.

In the case of the Deferred Action of Childhood Arrivals or DACA program, it’s pretty clear that the Executive Branch has been involved. President Obama created the DACA program in June 2012. President Trump has tried to end it since he’s been in office.

The Judicial Branch has also been involved. The US Supreme Court weighed in and slapped the Trump Administration for failing to follow proper administrative procedures when ending the program. To summarize, they were concerned about the process the administration used in determining it was time to end a program without considering the implications to the many people that had become reliant on the benefits of the program.

Shockingly, the administration completely disregarded the decision from the Supreme Court which resulted in a federal district court recently issuing an opinion that ordered the administration to resume the DACA program in full pending compliance with the administrative requirements highlighted in the Supreme Court order.

The question then is, where was the Legislative branch of the government in all of this? Did they pass a law that allows for deferred action as a general concept? Not specifically, and that is President Trump’s primary objection to the program.

The Immigration and Nationality Act (INA), passed by Congress in 1952, empowers the executive branch of the government to enforce deportation laws. That power implicitly includes the discretionary power to choose not to deport a deportable person. The choice to not deport someone who is deportable from the country has become to be called deferred action. The executive branch, currently the Department of Homeland Security, has the discretionary authority to determine in what circumstances to grant someone who is deportable from the US deferred action status.

The situations in which deferred action can be used are not limited by Congress or the courts. Generally, it is exercised in situations in which there are urgent humanitarian considerations or to protect people who have been the victim of crime. President Obama chose to formalize the program for the benefit of people illegally in the US who came here at a very young age. There is no question it was a political ploy to help in his effort to be reelected, but it also helped a lot of people who were illegally in the US through no fault of their own.

Trump’s Stance on DACA

The President and his branch of the government believe the program to be illegal. That is false. As explained, they absolutely have the discretionary authority to grant deferred action to anyone they deem deserving and worthy of it. Even without the formalized DACA program, those who benefit from it could have always requested it from DHS. And similarly, DHS has been given the discretionary authority to grant, implicitly through the INA.

It was not illegal for President Obama to have formalized the process for a group of people. Frankly, it is also not illegal for President Trump to decide to end the formalized program for granting it.

The real issue has nothing to do with the law. It is that President Trump does not agree with President Obama that the group of people who have been granted DACA is deserving of such a benefit. It’s what they should have said, but of course, politically that would be a disaster for them. So, instead, they try to justify it as an illegal action that has to be undone. That is completely disingenuous, but what politician has ever shied away from being disingenuous?

The Future of DACA

What does all of this mean for the fate of DACA? The Supreme Court and Federal District Court have effectively ordered the reinstatement of the program while the President goes through the correct administrative process to end the program. The President is fighting against those instructions. I believe if he can get it done before he is no longer in office, the DACA program will eventually end. If he is unsuccessful in being elected to a second term, maybe it survives.

For now, what is clear is that no new DACA applications can be filed today. This could change at any time, as the wrestling match between the Judicial and the Executive branches of the government continue to dance around this issue, to see which side’s will is stronger and ultimately prevails.