On June 18, 2020, the United States Supreme Court decided the matter of DHS v. the Regents of the University of California, et al, a collection of court cases known collectively as the DACA Issue before the Court.
In 2012, after years of Congressional gridlock, President Obama established by Executive Order the Deferred Action for Childhood Arrivals policy, a program that sought to protect immigrant children brought to the United States as children. The policy permitted those who qualified to receive
employment authorization and protection against deportation. DACA never provided a pathway to citizenship, or permanent residence – it simply acted to shield those young people, without criminal history, who graduated from school or served the US in the military to avoid the consequences of removal. The number of DACA holders today is approximately 700,000 persons.
DACA is controversial because it was created by executive order. Executive orders are presidential decrees under Article 2 of the Constitution – they simply tell agencies under the control of the President how to act. Here, President Obama directed the Department of Homeland Security to not initiate
removal proceedings against DACA holders, restrained DHS from deporting DACA holders, and authorized DHS to issue those individuals work authorization.
The controversy stems from the fact that this Executive Order has the broad power to act as legislation in place of legislation that has never been undertaken by Congress. The Constitution vests the power to make laws with the Legislature in Article I, not the President in Article 2. The controversy is an issue of separation of powers – the executive is not supposed to do something like this, even when Congress has not acted.
Because it is an Executive Order, when a new President is elected, that President has free reign to do what he or she wishes regarding prior orders of prior executives, so long as they undo that executive order properly. The policy can be undone, so long as it complies with the provisions set out in the Administrative Procedures Act, a law which governs how agencies act in the US.
In DHS v. Regents, and the accompanying cases, DACA recipients and those supporting the continued use of the program argued that the Executive violated the Administrative Procedures Act in terminating DACA. The Executive branch argued that they had the right to terminate DACA, and did so properly. In a 5-4 decision, the Supreme Court sided with DACA recipients, basically stating that the Executive erred in how they decided to terminate the program. This is not a full victory for DACA recipients, as the Executive has the option to again terminate the program and follow the procedures laid out by the court. The question, however, is whether the President will wish to do so during this election year.
This can all be solved if Congress would simply act and pass legislation to protect immigrant children brought here by their parents. These children had no say in the decision to come to the United States, and they pay a great price. DACA legislation could end the issues, but the gridlock in Congress gives no hope this will happen.
For those who have DACA, this seems to signal the ability for them to continue to receive benefits at this time, and we wait to see whether this will permit new applications to be filed. The regulations instituted eight years ago continue to remain in effect, so the amount of individuals who now qualify who did not in the past is a small group. If you are interested in learning more, please contact the Law Office of William J. Quirk, and we will be happy to evaluate your case.