In the wake of Donald Trump’s strong showing on Super Tuesday, and his probable path to the Republican nomination for President, it’s time for a closer examination of his immigration positions. Candidate Trump has made some very strong statements of what he would do to American immigration policy and practice if elected. I will pay him the courtesy of assuming that he means what he says, both because he has been clear in his views and because it is too dangerous not to take him at his word. This series of articles, “Preparing for the Trumpocalypse,” will focus on one topic:
Could President Trump actually do the things that Candidate Trump is promising?
Future articles will cover such topics as deporting the “11 million,” building the wall on the Mexican border, and a “total and complete shutdown of Muslims entering the United States.” Today’s article, however, addresses DACA, and whether President Trump could strip legal protections and work authorizations from the hundreds of thousands who have received DACA benefits thus far.
Question: Could President Trump end DACA?
Answer: Yes, and quickly.
DACA, or “Deferred Action for Childhood Arrivals,” is based in the President’s inherent power over immigration granted by the Constitution, and the principle of “prosecutorial discretion” exercised by the Executive Branch over violations of the law. This concept is nothing new, and it didn’t start with President Obama. Every time a police officer gives a speeder a warning instead of a ticket, or a prosecutor drops a charge because a defendant has paid restitution and court costs, they are exercising prosecutorial discretion. Under the immigration laws, the Department of Homeland Security (which enforces immigration law) has always had the authority to grant “deferred action” to people who, for appropriate reasons, the agency does not want to deport. Those persons with deferred action do not have legal status, but are allowed to apply for work permits. DACA used this authority to set up a system where the Department would grant deferred action to most people who met certain conditions (brought to the United States before age 16, received education in the U.S., not over a certain age, no serious criminal record). Whether you agree from a policy standpoint or not, DACA is a legal use of the President’s authority.
However, what the President gives, the President can also take away. President Trump would have the same broad powers over immigration policy and practice, and the same Executive authority, as President Obama. It would be a simple matter for President Trump to cancel the Executive Orders on which DACA is based.
Question: What would happen to the DACA recipients who have work permits?
Answer: They could face enforcement action if they don’t return them.
President Trump could also direct the Department of Homeland Security to cancel deferred action for DACA recipients who currently have it, at which time the Department would also cancel work authorizations for DACA recipients and direct them to return their work permits. Those who did not do so could be subject to enforcement action, as we saw in 2015 where some DACA recipients were mistakenly issued 3-year work permits and the Department eventually threatened a house-by-house search to get them back. Whether a Department under President Trump would use this opportunity to detain former DACA recipients as part of the “11 million” remains to be seen.
Stay tuned to this blog for next week’s article: Preparing for the Trumpocalypse: Could President Trump really deport the “11 million”?