In Defense of DACA, Deferred Action, and the DREAM Act
Originally published at 91 Tex. L. Rev. See Also 59.
This essay responds to “The Obama Administration, the DREAM Act and the Take Care Clause” by Robert J. Delahunty and John C. Yoo. Though I credit Yoo and Delahunty for considering the relationship between the DACA program and the President’s duties under the “Take Care” clause, they miss the mark in at least three ways: 1) Contrary to ignoring immigration enforcement, the Obama Administration has executed the immigration laws faithfully and forcefully; 2) Far from being a new policy that undercuts statutory law, prosecutorial discretion actions like DACA have been pursued by other presidents, and part of the immigration system for at least 35 years; 3) Despite the unsurprising fact that some people who could qualify for the congressionally-created DREAM Act possess the kinds of equities that make them attractive for a prosecutorial discretion program like DACA, it is simply inaccurate to equate the limbo status offered with a grant under DACA to the secure status that attaches to those eligible under the congressional solution known as the DREAM Act. These three points are analyzed in greater detail in this essay. While the DACA program “feels” like something more or greater in scope than previous acts of prosecutorial discretion, the authority being exercised by the agency is no greater or different. It is dangerous to argue that the potential size of the class that stands to benefit from DACA or the greater transparency somehow makes the DACA program legally unsound or different. Conceivably, a future Administration could place a cap on the number of applications that can be approved under DACA but this is a policy question, not a constitutional one.