Column: Trump said DACA is illegal. But is it?

Jonathan T. Weinberg Published 12:02 a.m. ET Oct. 5, 2017

President Donald Trump says that he has “great love” for the Dreamers.

There’s no reason why he shouldn’t: They’re young people who were brought to this country as children, grew up here, have clean criminal records, and either are currently in school, have graduated high school, or have served honorably in the U.S. military. Eighty-nine percent of them are employed. Nearly all are fluent in English. This is the only country they’ve known, and they contribute to our society.

Nonetheless, Trump recently sent out Attorney General Jeff Sessions to announce the end of the Deferred Action for Childhood Arrivals (DACA) program. The president has invited Congress to pass a new law, before the government starts deporting Dreamers in March. The odds of Congress coming through, though, are pretty low. Many legislators are opposed to such legislation, or favor it only if it’s tied to other immigration-law changes that can’t get through Congress. The Senate Republican leadership, in particular, seems to have no interest in acting. So Trump’s decision to end the DACA program puts all of the Dreamers at risk of deportation.

And yet, says the administration, Trump had to do it, because the program usurps Congress’s authority and is thus unconstitutional. That’s not right: The president has full authority to continue DACA indefinitely if he wants to. It’s true that DACA recipients are here in this country illegally. They’re among 11 million people in the U.S. without authorization. But Homeland Security doesn’t have the money or resources to deport in any given year even 5 percent of those 11 million people. It necessarily has to establish priorities, picking and choosing whom to seek to deport and who to allow to stay (for now, anyway). That’s called prosecutorial discretion; it’s the same thing a police department does when it tells officers to pull over the drivers who are 10 miles over the speed limit, but to let by those drivers who are merely five miles over.

Republican and Democratic presidents alike have routinely used that priority-setting power to shield people who are illegally in this country, but whom it would be dumb to spend scarce resources deporting. President Ronald Reagan’s Justice Department, for example, gave that protection to more than 150,000 Nicaraguans who were in the country illegally, and to more than 80,000 Chinese. More recently, President George W. Bush’s administration did it for thousands of foreign students affected by Hurricane Katrina. In immigration-law lingo, that’s called giving people “deferred action” status. And presidential administrations have routinely followed the practice — explicitly authorized by the Immigration and Naturalization Act — of giving people with “deferred action” status the authorization to work, openly, so long as they’re here.

Under President Barack Obama, deportations rose to record levels (to the consternation of some immigration advocates). Obama enforced the immigration laws. But he also made the common-sense judgment, as part of his prosecutorial discretion, that it would be stupid and inhumane to spend taxpayer dollars on deporting the Dreamers, rather than focusing our enforcement resources on better targets. And his administration, like others, used statutory authority to give them authorization to work while they’re here. In extending that forbearance to the Dreamers, allowing them for the past five years to go to school, to work, and to contribute to our society, the president did nothing exceptional or outside his authority.

The Dreamers identify as Americans, and have never known a home other than this country. For the past five years, DACA has allowed them to be open and productive members of our society. Attorney General Sessions told us that government has to shut DACA down, because it’s illegal. That’s not right, though. If Trump wants to continue DACA, he still can.

Jonathan T. Weinberg is a professor at Wayne State University Law School.

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