JURIST Guest Columnist Glenn C. Smith of the California Western School of Law discusses the legal issues surrounding DACA…

In explaining why President Trump was rescinding his predecessor’s DACA (“Deferred Action for Childhood Arrivals“) program — which provided two-year renewable protection from deportation, and rights to work and access limited social services, to 800,000-plus undocumented “dreamers” brought to America as children — Attorney General Sessions called DACA “an unconstitutional exercise of authority by the Executive Branch.”

By contrast, in his social-media lambast of the Administration’s decision, President Obama said it was a “political decision” not “required legally.”

So, who’s right on DACA’s legality? As is typical, the truth is complicated. And it depends upon how the question is framed.

No American court has opined about the legal merits of DACA itself, and there are persuasive arguments for and against it. But if the reasons three out of four lower-court judges rejected a later-adopted sibling (DAPA, the “Deferred Action for Parents of Americans” program) would have appealed to a current majority on the Supreme Court, then a continued DACA order would have been cruising for an eventual legal bruising.

Yet, the “if” in the above sentence is precisely the problem. How DACA would have ultimately fared in the current Court is difficult to predict. This is true because the Court failed to send clear signals (or even rule) in the DAPA case, because good arguments for and against DAPA and DACA exist, and because it is not definitively clear how a majority of the current Court (including new Justice Neil Gorsuch) would have ruled on DACA itself.

Ultimately, the lesson to be learned from DACA’s demise may be less about legal merits and more about the impacts of congressional inaction.

No Legal Ruling on “Original DACA”

To start at the beginning: no American court has opined about the legal merits of DACA itself. The much-publicized legal challenge to Obama-era immigration orders by Texas and 25 other States instead focused on DAPA, the broader followup order issued a 17 months later by the Obama Administration. DAPA would have provided similar renewal protection against deportation to several million parents and children of the dreamers covered by DACA. I say “would have” because DAPA never really got much traction.

On administrative-process grounds — but not before gratuitously opining about DAPA’s substantive legitimacy — a federal-district court in southern Texas issued a nationwide preliminary injunction against program implementation. A Fifth Circuit U.S. Court of Appeals panel split 2-1 in upholding the district-court injunction, finding DAPA “manifestly contrary” to the substance of applicable immigration statutes. (Caveat: Although the prime focus of this litigation was DAPA, the district-court order sustained by the intermediate appellate panel also stopped in their tracks three DACA expansions the Administration announced at the same time it unveiled DAPA.)

But Was DACA Likely to be Invalidated?

By November 2015, then, the original DACA program had gone into effect; by the time it was rescinded, it had granted deferrals to more than 785,000 dreamers. Yet, two levels of federal courts had invalidated DACA’s sibling and halted DACA’s expansion on legal theories quite applicable to DACA itself. So, does this mean that DACA itself was heading for a judicial rejection?

That’s a hard question to answer. First, the Supreme Court ended up providing no definitive ruling on lower-court rejection of DAPA. The eight-justice Court ultimately split 4-4 in June 2016. (I profiled the dynamics of this split, and the issues it left on the table, in an earlier JURIST column, The DAPA Non-Decision: The Meaning of Missed Opportunities.)

Second, this split among judges and justices reflects at least in part the strong legal arguments for and against DAPA (and by extension its older sibling, DACA).

DACA, like DAPA, is arguably a valid exercise of the wide authority Congress has given the president to set immigration-enforcement priorities and determine how scarce enforcement resources will be used. In this light, supporters can persuasively frame DACA as a valid exercise of the president’s constitutional power to “faithfully Execute” the laws of the United States. Presidents arguably have discretion to decide that “dreamers” are a low enforcement priority and that the economic, social, and humanitarian costs they face in living under a deportation cloud are unacceptable; past presidents have exercised comparable authority (although not on as large a scale) to forestall deportation of groups of non-citizens not able to be naturalized under current legal rules.

To the contrary, if one views DACA as granting new substantive rights (including work authorization), then the legal landscape looks very different. Congress never intended that presidents would use their discretion over enforcement priorities to in essence change the law about the immigration status of millions of people. The president’s “faithful execution” power is not the power to make up a new presidential policy and execute it. Past presidential orders forestalling deportation of groups are arguably not remotely comparable in size or effect.

Finally, other than through a simplistic political calculation — in which the current Republican-appointed majority would rule against an Obama-originated policy even though continued by a Republican president — it is less than certain which set of DACA arguments would have won out in the now-reconstituted nine-member Supreme Court. To begin with, it is not even clear that a majority would have been willing to reach the merits. As my earlier column indicated, the bases on which Texas and the other states claimed individualized injury to have “standing” to challenge DAPA raised serious issues under well-established doctrines seeking to promote judicial restraint. New Justice Gorsuch, for example, might have been given pause.

Even if the justices would have been willing to reach the merits, predicting how they would have resolved the complicated statutory-construction arguments is a challenge. (Significantly, federal statutes give the president substantially more discretion over initial entry into the country than conditions of naturalization for persons already present. Thus, it presumably is not probative that in June 2017 Justice Gorsuch joined a minority of justices who would have let the Trump travel ban go fully into effect pending Court review.) Further, the statutory arguments about DACA would have unfolded under still-uncertain cross currents in the constitutional doctrines governing presidential-power assertions. Finally, it is difficult to predict how the equitable differences between DACA and DAPA would have played out. (Although the legal arguments against DACA and DAPA significantly dovetail, the fairness arguments for protecting the dreamers themselves might have been significantly more appealing than the arguments for protecting their relatives.)

The Ultimate Lesson?

Perhaps the source of DACA’s ultimate legal uncertainty is the main lesson here. Congress clearly had — and has — the authority to legislate a DACA-type renewable deferral program. But Congress did not act, making the resonant legal question whether DACA could be imposed by unilateral executive action.

Indeed, President Trump may face a return of this uncertainty — depending upon what he meant by a September 5th tweet promising to “revisit” DACA if Congress fails to act in six months.

Regardless, if Congress continues to be gripped by dysfunctional partisan gridlock, both Trump and successor presidents may face DACA-like legal exposure when they act unilaterally on an even broader range of issues.

Glenn C. Smith is a professor of Constitutional Law at California Western School of Law in San Diego. He is the co-author of CONSTITUTIONAL LAW FOR DUMMIES, a Dummies™-brand guide for law students, legal practitioners and interested laypersons.

Suggested citation: Glen C. Smith, What’s up, DACA?, JURIST – Academic Commentary, Sept. 24, 2017, http://jurist.org/forum/2017/09/Glenn-Smith-whats-up-daca.php