Anxiety. Heartbreak. Torment. These are just some of the feelings I have held on the heels of news reports and rumors that President Donald Trump may end the dreamer program known as Deferred Action for Childhood Arrivals (DACA). DACA is a program launched in 2012, and open to qualifying individuals who came to the United States as youth, and are in school or graduated, among other requirements. DACA recipients study all over the country and inside the university where I teach, serve, and conduct research. I have had the privilege to know and engage those with DACA — they are America’s success story.
While DACA has been touted by critics as something newly created by the Obama administration, the instrument of deferred action (a form of prosecutorial discretion) enjoys a long history and is one that I have studied for more than a decade.
The legality of deferred action and DACA in particular is well documented, and most recently by 105 law professors in an open letter I co-authored to the President outlining the related constitutional, statutory, regulatory and judicial authorities. As one illustration, Congress has delegated to the Department of Homeland Security the authority to make decisions about immigration enforcement. Moreover, a regulation promulgated by the Executive Branch under the Reagan administration enables deferred action grantees to apply for work authorization upon a showing of economic necessity. Thousands of individuals have applied for and received work permit based on deferred action. Finally, the U.S. Supreme Court has declared that prosecutorial discretion is essential in immigration law as choices have to be made about whether to pursue removal at all.
President Trump promised to show “great heart” when dealing with “Dreamers,” but there are advocates and policy makers who believe that DACA will be rescinded in some way or another. The decision is down to one person. It is with great urgency that I call on the President to preserve the DACA policy and ignore the threat letter by AG Paxton and others to rescind the program by September 5.
As a starting point, the September 5 deadline is “made up” in the sense that the administration is under no obligation to make a decision about DACA by this date. What is more, it is highly unclear whether TX and the AGs (now minus TN) will even be successful in tacking DACA 2012 onto a lawsuit that was originally launched in the name of a different and now moot program known as Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA). Finally, the letter itself misconstrues the law (which arguably should be construed only by those who are actually familiar with the immigration statute) and serves to “bully” an administration who instructed Dreamers to “rest easy.”
Beyond the law are the extraordinary contributions of DACA recipients. These contributions were showcased most recently in a statistical study of more than 3,000 DACA recipients. The study found that “at least 72 percent of the top 25 Fortune 500 companies employ DACA recipients” and that 97 percent of respondents were in school or employed.
Ending DACA would be tragic, not just for DACA recipients and their families, but also for the rule of law and American universities, businesses and communities. Flagship universities would lose among their best and brightest. American citizens working at Dreamer-started businesses would lose their jobs, and Social Security and Medicare would lose billions in potential contributions. Dear Mr. President: Please preserve the rule of law, uphold DACA and respect those who are American in every way.
Wadhia is the Samuel Weiss Faculty Scholar, clinical professor of Law, and director of the Center for Immigrants’ Rights Clinic at Penn State Law. She is the author of Beyond Deportation: The Role of Prosecutorial Discretion in Immigration Cases, published by NYU Press and new in paperback in 2017.