California Forum

Trump’s toying with DACA is not only cruel, it’s baseless. No wonder he’s talking about a deal

California attorney general on DACA: 'We are ready to sue.'

California Attorney General Xavier Becerra on Tuesday Sept. 5, 2017 said he would sue the Trump Administration over its decision to end the DACA immigration program.
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California Attorney General Xavier Becerra on Tuesday Sept. 5, 2017 said he would sue the Trump Administration over its decision to end the DACA immigration program.

President Donald Trump and Attorney General Jeff Sessions were plainly wrong when they said that DACA – Deferred Action for Childhood Arrivals – had to be repealed because it was an unconstitutional act by President Barrack Obama. The repeal of DACA must be understood as nothing more than a mean-spirited part of their anti-immigrant agenda.

Under DACA, approximately 800,000 individuals who came to this country as children and have led productive lives are given relief from fearing deportation. It applies to those who came to the United States before their 16th birthday, were under 31 years old as of June 15, 2012, have lived continuously in the United States from June 15, 2007, until the present, are currently studying or graduated from high school or earned a GED or have been honorably discharged from the Coast Guard or military. To qualify, an individual must not have a conviction for a felony or a significant misdemeanor.

Trump and Sessions thus should not be able to hide behind a false claim that DACA violates the law. They have made a political choice at the expense of hundreds of thousands of innocent individuals.

These individuals, often called “Dreamers,” provide compelling stories of truly fulfilling the American dream. Uprooting them and deporting them, often to countries they left as small children (one study found that most were brought to the United States before age 7), serves no one’s interests.

Trump and Sessions tried to justify repealing DACA by claiming that it was an illegal act by Obama. They were wrong because presidents always have discretion as to who to prosecute or deport.

DACA did not confer citizenship on anyone. The president does not have that authority. Rather, DACA was the president saying that the government would not bring enforcement actions to have these individuals deported. There are approximately 11 million undocumented individuals in the United States and at most the government deports 400,000 a year. DACA reflected an exercise of Obama’s discretion in setting enforcement priorities for the federal government. Trump could continue that.

As a matter of law, it is absolutely clear that Obama had the authority to decide not to prosecute or not to deport anyone he chose. Prosecutorial discretion is an inherent part of presidential power. No one believes that the federal government has to prosecute every violation of every federal crime or to deport every person who is eligible for deportation. The federal government, for example, long has not prosecuted people caught with small amounts of marijuana even though it violates the federal controlled substance act.

All of this is even clearer in the area of immigration policy. The Supreme Court long has recognized that immigration and deportations are closely tied to foreign policy, which is uniquely in the domain of executive power and control. Throughout history, the federal government in individual instances and in classes of cases has decided for humanitarian concerns or foreign policy reasons not to attempt to deport individuals, even though they are not lawfully in the United States.

Republican presidents have used this discretion as much as Democratic ones. In 1987, in response to politics in El Salvador and Nicaragua, the Reagan administration took executive action to stop deportations for 200,000 Nicaraguan exiles.

In 1990, President George H.W. Bush, to advance his foreign policy, stopped deportations of Chinese students and in 1991 kept hundreds of Kuwait citizens who were illegally in the United States from being deported. In 2001, President George W. Bush limited deportation of Salvadorian citizens at the request of the Salvadorian president and ordered that deportation decisions include consideration of factors such as whether a mother was nursing a child or whether an undocumented person was a U.S. military veteran.

Trump and Sessions thus should not be able to hide behind a false claim that DACA violates the law. They have made a political choice at the expense of hundreds of thousands of innocent individuals.

Perhaps DACA still can be saved. Lawsuits have been filed challenging its repeal, including by the University of California, by attorneys general of 15 states led by New York and Washington and on Monday by the state of California, joined by Maine, Minnesota and Maryland. They contend that the Trump/Sessions action lacks adequate justification, failed to follow proper procedures, and deprives individuals of liberty without due process. Also, Congress has six months to pass legislation to provide statutory authority for DACA and thus continue the program. And, of course, there are the on-again, off-again rumors of a deal between Trump and Democratic leaders, which I hope will come true.

But for now, Trump and Sessions have created great uncertainty, for no good reason, for 800,000 people who never have done anything wrong and who add so much to our country. They should be ashamed.

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

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