What are the positions on DACA and Dreamers?

Encyclopedia of Opinion

Question: What are the positions on DACA and Dreamers?
Position‹2 of 2: DACA should be eliminated
Argument‹2 of 3›: DACA is legally unjustified

There are established immigration laws for people coming to the US with no status. President Obama had no constitutional authority to exclude young immigrants from these laws by making a program like DACA.

The argument

The laws for immigrants without status are already present in American law based on the constitution. The argument begins from that fact: a legal framework already governs the situation, so on this view the case for DACA is really a case for exempting one group from rules that otherwise apply generally. These laws should apply to all immigrants and young immigrants should not be excluded. Dreamers have already broken the law by illegal travel to the US or remaining illegally in the US without documentation, and they should be entitled to the law including deportation. The constitutional objection follows from the same premise. Proponents of this position hold that Trump tried to reverse DACA policy because Obama had no constitutional authority to impose the DACA policy that prevents enforcement of the immigration law on certain groups of immigrants. The complaint concerns who decides rather than the merits of the policy: suspending enforcement of a statute for a defined class is said to be a legislative act, and therefore not something an executive may undertake alone. There is also a claim about consequences. Giving rights and protection against deportation for illegal immigrants will only encourage more illegal immigration to the country. People will find it less consequential to come to the US illegally since DACA will protect them and their rights for education and work. The incentive is said to extend past those who actually qualify, because those who do not qualify for DACA will still come and stay hoping that they would qualify later. Overall, on this argument, DACA does not put an end to illegal immigration but encourages it, which amplifies the problem.

Premises

[P1]US immigration law, grounded in the constitution, already covers undocumented immigrants and should apply to all of them, including the young. [P2] Dreamers entered or remained in the US without documentation, so they are subject to that law, including deportation. [P3] Proponents argue Obama lacked constitutional authority to impose DACA, which blocks enforcement against certain immigrants, which is why Trump sought to reverse it. [C] Therefore, DACA is legally unjustified and should be eliminated.

Counter-arguments

The decision of abandoning DACA would be a political decision, not a legal one. Establishing and implementing DACA does not violate the constitution or immigration laws. The US government succeeded in defending DACA against many legal objections and any constitutional challenges have failed. DACA is a temporary program that gives young immigrants, who pass criminal background checks and meet educational requirements and other criteria, the ability to stay for two years that is subject to renewal. The government has so many duties to protect its people. DACA makes perfect sense because it helps direct the government's time and efforts regarding immigration issues. DACA is fully lawful and does not violate the constitution.

Rejecting the premises

[Rejecting P1] That immigration law exists is not in dispute; the question is whether the executive may set enforcement priorities under it. Prosecutorial discretion in deciding whom to pursue is a long-standing feature of enforcement generally and of immigration enforcement in particular, and the premise does not engage it. [Rejecting P2] Deferred action confers no legal status and exempts no one from the law; it defers removal for a renewable period and is revocable. The premise treats a decision not to prioritise enforcement as a grant of immunity, which is a stronger claim than the programme makes. [Rejecting P3] The constitutional claim is asserted rather than established. When the rescission reached the Supreme Court in 2020, the Court set it aside as inadequately reasoned rather than endorsing the view that the programme was unlawful, and the counter-argument notes that constitutional challenges had not succeeded. The further claim that DACA encourages illegal immigration is an argument about consequences, which cannot support a conclusion about legality — and it is offered with no evidence.

Proponents cited

Lamar Smith
“The Dream Act will only encourage more illegal immigration. One only needs to look at history to see how amnesty has played out in the past. The 1986 amnesty legislation legalized about three million illegal immigrants. But rather than put an end to illegal immigration, the amnesty only encouraged more”
Elizabeth Murrill
“No matter one’s views on the policy principles motivating DACA, we should all be able to agree that the executive cannot legislate by fiat… The core of DACA’s substantive unlawfulness is its grant of “lawful presence” to hundreds of thousands of aliens whom Congress has declared to be unlawfully present”
Ken Paxton
“Congress has the sole authority to write immigration laws, and it has repeatedly rejected attempts to enact the polices embodied in DACA and DAPA; however, in a lawless exercise of executive power, the Obama administration attempted to bypass our elected representatives and put those policies in place by executive action”