Opinion

Trump should have never ended DACA. It’s up to the Supreme Court to make it right

On November 12, the Supreme Court will hear oral arguments in a case that likely will determine the fate and future of approximately 800,000 Dreamers – young men and women who were brought to the United States at a young age.

My hope – and I am one of many lawyers representing these individuals – is that the Supreme Court will follow both the law and common sense, and rule against the Trump administration’s cruel attempt to deport them.

President Barack Obama started the Deferred Action for Childhood Arrivals (DACA) program. To be eligible, an individual must have been brought to the U.S. before age 16 and was under the age of 31 when the program was announced. The person must be in school, or must have graduated high school. Or they must be in the military or have received an honorable discharge after military service. The individual must not have a conviction for a felony or a serious misdemeanor.

Pursuant to federal immigration law, these individuals are given deferred deportation status for a period of two years, which can be renewed. This means that they do not need to fear being deported during this time and are eligible for work permits. There are many Dreamers in my law school and on my campus.

Unfortunately, President Donald Trump chose to repeal this program. Why? There was no indication that these individuals posed any risk to the country. Any person who committed a crime faced deportation. By all accounts, these are productive individuals who contribute to their community and our economy. Besides, it is just mean to force these individuals to face deportation to countries where many never lived.

Opinion

Rescinding DACA is a part of President Trump’s strong anti-immigrant policies. His justification for repealing DACA is his view that it was illegal for Obama to create the program.

Three federal district courts and the United States Court of Appeals disagreed with Trump on this. They held that DACA was lawful and there was, therefore, no legitimate reason for repealing it. The law is clear that an administrative action such as this one cannot be arbitrary or unreasonable.

DACA is legal as an exercise of presidential prosecutorial discretion. It is estimated that there are more than 11 million undocumented individuals in the United States. At most, the government deports 400,000 people a year. DACA was Obama articulating the government’s priorities in immigration enforcement.

There is no doubt that the president has the constitutional authority to decide to not proceed with deportations. It is always in the president’s discretion to decide whether to have the Department of Justice enforce a particular law.

Erwin Chemerinsky (2).JPG
Erwin Chemerinsky
Controlled Substance Act

This prosecutorial discretion, which is inherent to the presidency, takes on even greater force in the area of immigration because the treatment of foreign citizens and their deportation is inextricably intertwined with the nation’s foreign affairs, an area especially under the control of the president.

Presidents of both parties have exercised discretion with regard to immigration. In 1987, the Reagan administration took executive action to limit deportations for 200,000 Nicaraguan exiles, even those who had been turned down for asylum. Similarly, President George H.W. Bush in 1990 limited deportations of Chinese students and, in 1991, kept hundreds of Kuwait citizens from being deported.

President Bill Clinton regularly used his power of prosecutorial discretion to limit deportations. In 1993 he gave 18-month extensions to Salvadoran residents. In 1997, he limited deportations for Haitians and, in 1998, he limited deportations to Central American counties that had been devastated by hurricanes.

President George W. Bush also took major steps to limit deportations on humanitarian grounds. In 2001, he limited the deportation of Salvadoran citizens at the request of the Salvadoran president, who said that their remittances were a key part of their nation’s economy. The Bush administration embraced prosecutorial discretion and ordered the consideration of factors such as whether a mom was nursing a child or whether an undocumented person was a U.S. military veteran in making the determination on whether to order a deportation.

Simply put, DACA was legal and there was no justification for Trump’s repealing it, other than his disdain for anything done by Obama and his restrictive immigration philosophy. That is not a legitimate reason for putting 800,000 people in fear of deportation and uprooting their lives.

Erwin Chemerinsky is dean and professor of law at the UC Berkeley School of Law. He can be contacted at echemerinsky@law.berkeley.edu.
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