The Question of Executive Power and Immigrants: A Quick Look at DACA History

Modern US legal history has shown that where nonresident aliens are involved, the question of unilateral executive action is often present; Korematsu v. US and Executive Order 9066, in addition to Rasul v. Bush and executive actions in Guantanamo serve as two general examples.

Another example, one that has recently been featured in news headlines, is the Deferred Action for Childhood Arrivals (DACA) policy, established by the Obama Administration on June 15, 2012 through the Napolitano Memorandum from the Department of Homeland Security (DHS). The memo outlined eligibility requirements for undocumented immigrants who were children at the time of their arrival to the US, and stated that the use of deferred action and work permit distribution for eligible immigrants was a use of prosecutorial discretion to enforce the law in a “strong and sensible manner”.[1] Additional rationale stated that “these individuals lacked the intent to violate the law” and highlighted the harm of deporting “productive young people to countries where they may not have lived”.[2] It was also made clear that DACA did not grant substantive right, immigration status, or a pathway to citizenship. Since the memo, more than 825,000 people have successfully applied for deferred action, with 578,680 active DACA recipients as of March 2023.[3]

In 2014, DHS’ attempts to expand DACA eligibility and establish Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) led to a nationwide preliminary injunction that blocked the implementation of both. The Fifth Circuit upheld the injunction, as the court concluded that the program violated the Immigration and Nationality Act (INA), and the Supreme Court affirmed with a divided vote.[4]

In 2017, the Trump administration announced the rescission of DACA. An executive statement from former President Trump implied that DACA “led to lower wages and higher unemployment for American workers,” while a letter from then-Attorney General Jeff Sessions asserted that DACA was an unconstitutional exercise of authority by the Executive branch, “without proper statutory authority… after Congress’ repeated rejection of proposed legislation.”[5] DHS, under Acting Secretary Elaine C. Duke attempted to terminate DACA; the act was challenged in district courts nationwide, where plaintiffs claimed that Duke’s decision was “arbitrary and capricious” in violation of the Administrative Procedure Act (APA) and “infringed the equal protection guarantee of the Fifth.”[6] When appealed, the Supreme Court ruled in DHS v. Regents that the DHS decision was within the court’s jurisdiction and was arbitrary and capricious in violation of the APA. Part IV of the decision, however, stated that respondents failed to establish “plausible inference” that the rescission of DACA was motivated by animus in violation of equal protection.[7]

Following the 2020 decision, President Biden issued a memorandum that stated that the Secretary of DHS, alongside the Attorney General “shall take all actions he deems appropriate, consistent with applicable law” to preserve and fortify DACA.[8] A couple months later, in July 2021, Judge Andrew Hanen, a federal district court judge in Texas, ruled in favor of Texas and other states in a lawsuit—filed in 2018—that declared DACA illegal. Judge Hanen’s rationale included DHS’ lack of congressional statutory authority to adopt DACA, and that “DACA is not a reasonable interpretation of any statute and is ‘manifestly contrary’ to the statutory scheme promulgated by Congress”; according to Judge Hanen, DACA “usurps the power of Congress to dictate a national scheme of immigration laws.”[9] An order of permanent injunction to prevent DHS from processing new applicants was issued. The Fifth Circuit affirmed but remanded the case back to the district court due to new developments.[10]

The new developments in question were the DHS’ proposal to preserve and fortify DACA, as instructed per Biden’s memo. Known as the ‘Final Rule’, the 453-page long document established new regulations and guidelines for the continuation and fortification of the program, in response to Hanen’s 2021 ruling. Despite changes, however, Judge Hanen ruled in September 2023 that the ‘Final Rule’ is “materially the same as the 2012 DACA Memorandum,” and did not address the substantive problems noted by both the district court and the Fifth Circuit; thus, it was unlawful for the same reasons the 2012 memo was.[11] The current injunction was extended, but existing recipients are able to continue receiving protections and renewals. The case is expected to be appealed.

Examining DACA’s extensive and complicated history requires an examination of questions of executive power. But, as with Korematsu and Rasul, it also calls for a reckoning of the influence that politicization and xenophobia may have on what seems to be an objective legal system. While the court itself may appear objective and strict to the law, the inputs and outputs of the court are not. Stigma regarding undocumented immigrants is a notable input, while the removal of DACA further disparaging racial outcomes would be an output. Judicial review is not isolated from context, and DACA, just as Korematsu and Rasul, is no different.