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Don’t Let Trump Hide Behind the Constitution in Ending DACA

On Tuesday, the Trump administration formally announced its decision to end one of President Obama’s signature immigration accomplishments—the Deferred Action for Childhood Arrivals policy (DACA). Designed to protect Dreamers, that policy has insulated from deportation as many as 800,000 young people who were brought to the United States as children. Attorney General Jeff Sessions claims that the Obama Administration violated the Constitution when it decided, as a matter of prosecutorial discretion, not to deport Dreamers and instead to invest enforcement resources elsewhere. But Sessions’ position is both wrong and disingenuous. The Constitution’s Take Care Clause has never barred under-enforcement of the law. And Sessions knows that. Since assuming office he has spearheaded the under-enforcement of several laws. Dreamers simply don’t count in his and Trump’s books the way others do. That’s a policy choice. Not a constitutionally required one.

Jeff Sessions knows all too well that, when fulfilling the constitutional duty to enforce the law, administrations from both parties have historically had broad discretion to decide when and how the law should be enforced. This is true not just for immigration, but also with respect to criminal prosecutions, civil rights laws, and regulatory enforcement actions on matters as diverse as the environment, antitrust, and labor law. And it is not at all uncommon for the Department of Justice or other agencies to decide that enforcing the law against a particular group of people is neither just nor worth their limited time and resources.

In fact, Sessions himself has already announced radical shifts in enforcement priorities, particularly in the domain of civil rights. He no longer intends for the Justice Department to exercise supervisory authority over state and local police departments to ensure that they comply with basic civil rights laws. The Department appears to be looking for ways of abandoning consent decrees in school desegregation cases. And it almost certainly has no intention of enforcing the voting rights act in a rigorous fashion.On drug policy, Trump and Sessions have announced a clear intent to return to the bad old days of the war on drugs, bringing back aggressive prosecution of low-level offenders and minor possession offenses. Their desire to renew a law enforcement approach to the war on drugs is in many ways of a piece with their punitive immigration policy. Sessions himself might defend this approach by saying that it reflects nothing more than Trump’s commitment to law and order. But, of course, the Trump administration’s recently announced immigration enforcement priorities—which includes targeting certain “criminal” immigrants—necessarily means the deprioritization of others who are also in violation of the law. Yet this power of prioritization (and deprioritization) is precisely the power that Sessions on Tuesday suggested he and the President don’t have.

The truth is that Trump and Sessions’ commitment to total enforcement emerges only when it aligns with this administration’s policy preferences. And despite Trump’s claim that he would act with a “big heart” on immigration, continuing DACA just does not fit with the Administration’s restrictionist, anti-immigrant agenda.

Ultimately, DACA embodies the exercise of a core and traditional executive function, not a usurpation of legislative authority. In fact, discretionary executive authority is, if anything, far greater over immigration policy than it is in many other regulatory arenas. This authority is the inevitable consequence of an immigration system in which the reality on the ground departs so radically from the laws on the books. With nearly half of all noncitizens in the United States living here without legal authorization, Presidents have not just the authority, but also the obligation, to make difficult discretionary judgments about who should be in the sights of our massive immigration enforcement bureaucracy.

It is true that only Congress can bestow legal status on the Dreamers. But a reprieve from deportation is not legal status. And nothing in the Constitution or the immigration statutes preempts the Executive Branch’s authority—exercised over the last half century by every presidential administration—to exercise the judgment not to deport sympathetic groups of noncitizens.

Sessions argued today that it is the President’s duty, not his preference, to turn the status of the Dreamers over to Congress and subject them to potential deportation in the (likely) event that Congress fails to act within six months. But the President cannot hide behind the Constitution to justify this decision. Nor should he allow himself to be bullied by states wielding specious constitutional claims. Trump and Sessions must embrace the choices to end DACA and its attendant cruelty on the merits.

Nothing in the Constitution requires the President to rescind DACA. It’s only this administration’s ideological belief that immigrant youth are not worthy of enforcement discretion that supports the end of DACA, not the Constitution’s mandate.

Adam Cox and Cristina Rodriguez are the authors of a forthcoming book about the President’s power to shape American immigration law (Oxford Univ. Press 2018)

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About the Authors

, Robert A. Kindler Professor of Law at NYU, is a leading expert on immigration law, voting rights, and constitutional law. You can follow him on Twitter (@adambcox).

is the Leighton Homer Surbeck Professor of Law at Yale Law School. From 2011-2013, she served as Deputy Assistant Attorney General in the Office of Legal Counsel in the U.S. Department of Justice