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President Trump: The End of DACA?

In March, shortly after Donald Trump’s strong showing on Super Tuesday, we published a series of articles concerning whether a President Trump could actually make the immigration changes that Candidate Trump was promising.  Now that Mr. Trump is the President-Elect, it’s time to look more closely at the changes we expect to see next year.  We’ll start with DACA (“Deferred Action for Childhood Arrivals”), a program started under President Obama that allowed certain people brought to the United States as children to receive protection from deportation (“deferred action”) and work permits.

Question:        Could President Trump end DACA?

Answer:          Yes, and quickly.

DACA is based in the President’s power over immigration granted by the Constitution.  Under the principle of “prosecutorial discretion,” law enforcement officers can make decisions about how the laws are to be enforced.  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, those law enforcement officers are exercising prosecutorial discretion.

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 if they can show financial need.  President Obama used this executive authority to create DACA, a system where the Department was instructed to 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 one President gives by Executive Order, another President can also take away.  President Trump will 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 and memos on which DACA is based.  In fact, in his “Contract with the American Voter,” President-elect Trump has promised to “cancel every unconstitutional executive action, memorandum, and order issued by President Obama.”   Exactly how he will do this, or which executive orders he will consider unconstitutional, is yet to be seen.

While no one knows for certain what President-Elect Trump will do once he takes office, it is highly likely that he will end DACA quickly.  How that decision would affect immigration enforcement, what will happen to people who currently hold DACA work permits, and whether people should still apply for DACA before January 20, will be subjects of future posts.  In the meantime, if you want to discuss your case with an attorney, please contact us at (423) 402-0608 or via e-mail at [email protected] to schedule a consultation.