Andrew Pincus is an attorney in Washington.
Does the president have legal authority to protect "dreamers" — the nearly 800,000 undocumented individuals who were brought to the United States as young children, grew up here and have been vetted extensively, temporarily excluded from deportation and allowed to contribute to society by working legally, buying homes and paying taxes?
Newt Gingrich said on Wednesday that White House aides who oppose protecting dreamers on policy grounds are using legal arguments as an "excuse" to pressure the president.
Gingrich is right.
The Justice Department and White House counsel's office are — regardless of party — the principal guardians of executive branch power. If these entities are saying that dreamers can't be protected, as has been reported, they are violating that responsibility. It is particularly odd for this administration, which has so frequently invoked executive power, most aggressively in the very immigration context in which the dreamer issue arises.
The "no authority" argument is also clearly wrong.
Granting "deferrals of removal" or "deferred action"— a determination by the federal government that it will not seek to remove an individual from the United States — has been an established practice for more than 50 years, under both Republican and Democratic administrations. That exercise of prosecutorial discretion rests on the president's constitutional authority to execute the laws and has been expressly recognized by the Supreme Court.
Also, the immigration laws specifically charge the secretary of Homeland Security with "establishing national immigration enforcement policies and priorities." Deferral of removal is just that: determining that certain people should not be priorities for enforcement because others — criminals, for example — should be the targets for limited federal resources. Focusing enforcement resources on dangerous individuals protects everyone in the United States and promotes the rule of law. Congress has recognized the legitimacy of "deferred action" status in a variety of statutes, including the USA Patriot Act.
An individual who obtains deferred action gets an official Department of Homeland Security document, a "notice of decision," stating that the government has decided that he or she is not subject to removal for the specified period. The government has the right to revoke that determination, but the decision is binding as long as it remains in effect.
For 50 years it has been the practice of federal immigration authorities to authorize individuals granted deferred action to work lawfully. It is an unavoidable fact that these people may need a way to support themselves while they are permitted to remain in the United States. Otherwise they might be forced to work illegally.
The Reagan administration's Justice Department formalized this practice, promulgating a regulation allowing undocumented individuals with deferred action to apply for and obtain authorization to work based on a showing of economic need. Congress then endorsed that regulation when it enacted a law barring the hiring of unauthorized immigrants but explicitly excluded from that category individuals authorized to work by the attorney general. That is the regulation under which a dreamer can apply for and, if eligible, obtain work authorization based on deferred action status.
Those arguing dreamers can't lawfully be protected may be relying on a decision by the U.S. Court of Appeals for the 5th Circuit invalidating the Obama administration's Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) program. But DAPA was a very different program.
There was no dispute in the DAPA litigation over the power to grant deferred action. Rather, the focus of debate was the statement in the DHS document establishing the DAPA program that "for a specified period of time, an individual [covered by DAPA] is permitted to be lawfully present in the United States." The lawsuit argued, and the court held, that the Obama administration lacked any legal authority to grant the right "to be lawfully present."
The DHS memorandum covering dreamers never uses the phrase "lawfully present" and does not grant a right "to be lawfully present in the United States." It simply exercises "prosecutorial discretion" with respect to removal prioritization — the legal basis for the granting of deferred action. And the memorandum states that federal agencies "shall accept applications to determine whether these individuals qualify for work authorization during this period of deferred action" without requiring any specific determination with respect to those applications. The argument made in the DAPA case — that the memorandum there granted something more — is inapplicable to dreamers.
Dreamers also less are than one-fifth of about 4 million people who would have been covered by DAPA. The large size of the DAPA group was a significant factor in the 5th Circuit's ruling.
The number of protected dreamers is much closer to the scope of the George H.W. Bush administration's "Family Fairness" program — a deferred action/work authorization initiative that was anticipated to cover approximately 1 million people.
Finally, the substantive and procedural restrictions on executive branch authority that the 5th Circuit applied to DAPA are the very restrictions that the Trump administration is opposing in its defense of the travel ban executive order and other executive actions. How could the Justice Department agree that the president lacks authority with respect to dreamers but has broad authority in every other immigration context? Asserting that dreamers can't be protected will weaken the executive branch across the board.
Trump has the legal authority to protect dreamers. Those who want to stop protecting them can't hide behind the law; they have to justify their position on policy grounds. But destroying the lives of nearly 800,000 people who voluntarily came forward to become productive members of society is an indefensible policy.