In the previous chapter, The Failed but Widely Supported DREAM Act, we discussed the history, purpose, and requirements of the long-debated DREAM Act. As discussed at the end of the previous chapter, the continued push for the passing of the DREAM Act led to the future announcement and implementation of the Deferred Action for Childhood Arrivals (DACA) by President Obama. 

What is DACA?

Deferred Action for Childhood Arrivals (DACA) is a United States immigration policy that is meant to help those who are here illegally because they were brought to the United States as undocumented children by their parents. DACA helps qualifying individuals by extending a two-year period of deferral from deportation, along with a governmentally approved work permit. This two-year period of deferral is also renewable under DACA. It is important to understand that meeting all of the requirements of DACA does not guarantee DACA approval, it only ensures eligibility. A major difference between the DREAM Act and DACA is that DACA does not provide any path to citizenship or legal permanent resident status; DACA simply allows for a two-year deferral period and lawful presence. The DREAM Act in its many forms would allow an individual to become a legal permanent resident (green card holder) after all the requirements were met. As DACA is not a law, but an immigration enforcement directive, it was put into place by President Obama through an Executive Order.

What is an Executive Order?

Article II of the Constitution gives executive power to the President of the United States and further says that the President shall “take care that the laws be faithfully executed.” This has been interpreted to give the President the power to impose and exercise discretion in the enforcement of laws. An Executive Order is an expression of the President’s executive authority on the way existing laws are to be enforced. The President has broad enforcement discretion relating to matters of immigration as the President also has the executive authority to control and conduct relations with foreign nations. It is important to understand that Executive Orders themselves are not new laws or laws at all, they are presidentially declared policies that deal with the enforcement of laws that are already put in place. Laws are passed through Congress and are also made by important court decisions. One such important court decision was that of Plyer v. Doe, preventing undocumented children from being denied a public education.

The Importance of the Case of Plyler v. Doe

The case of Plyler v. Doe was a landmark case win for undocumented immigrant children in their ability to receive equal access to education. In Plyer v. Doe, the original controversy began in 1975 when Texas Legislature allowed local schools to deny enrollment in public schools to children who were not “legally admitted” to the United States. Two years later, Tyler School District passed a measure allowing children who were not legally admitted the ability to pay a tuition to attend their public schools. A group of students from Mexico were not able to qualify to enroll in public school under the then-existing laws so a class action suit was filed, which ultimately made its way to the United States Supreme Court. The Supreme Court in this case ruled that under the Constitution, states cannot deny free public education to any student based on their immigration status. The Court reasoned that the monetary and personnel resources that might be saved by denying undocumented immigrant children from attending public school was far outweighed by the overall harm to society by denying children the ability to receive a basic education. The date chosen by President Obama to announce the implementation of DACA was the 30-year anniversary of the Supreme Court decision in Plyer v. Doe, which came in 1982.

The Announcement and Implementation of DACA

DACA was announced by President Obama on June 15, 2012 with a speech at the White House Rose Garden. DACA was technically established through a memo by the then Secretary of Homeland Security Janet Napolitano which was titled “Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children.” The memo was meant as an exercise of discretion within the framework of the existing laws to specify children under the qualifications of DACA to be given prosecutorial discretion and consider them as low priority individuals. Enrolling in DACA for those who would qualify would allow a continual deferral from deportation every 2 years as long as they maintain their qualifications and do not trigger any other reason to be subject to deportation. An individual has to renew their DACA application every two years or be subject to deportation. United States Citizenship and Immigration Services (USCIS) started officially accepting DACA applications on August 15, 2012. Approximately 157,000 DACA applications were received by the end of 2012, with the numbers increasing but fluctuating in the following years.

DACA Fast Facts

DACA and its related predecessors have seen its share of legal controversy, but the positive effect on the population it protects has allowed many to see the benefits of DACA. Some important and interesting facts and statistics relating to DACA include:

• DACA recipients and those who would qualify for DACA are often called Dreamers, as they are the same population that was debated in the DREAM Act.
• There are as many as 3.6 million people living in the United States today who entered the United States as undocumented children. 
• About 1.3 million people are currently eligible for DACA in the United States today. Of those people only about 650,000 are currently enrolled and protected from deportation under DACA.
• DACA recipients are originally from almost 150 different countries.
• About 80% of those who qualify for DACA were born in Mexico.
• The average individual who qualifies for DACA arrived in the United States when they were approximately seven years old.
• The average individual who qualifies for DACA has lived in the United States for over 20 years.
• More than 250,000 children were born here to parents who are current DACA beneficiaries.
• The top five largest DACA populations by state are in New York, California, Texas, Illinois, and Florida.

The pool of eligible DACA recipients was set to increase by approximately 330,000 individuals through an attempted but failed expansion of the DACA program by President Obama in 2014. 

President Obama’s Attempt to Expand DACA

In November 2014, President Obama announced an intended expansion of DACA which would allow eligibility for undocumented immigrants who were older than 30 as well as those who arrived in the United States before 2010. Another measure was also included in this attempted expansion; this measure was called Deferred Action for Parents of Americans (DAPA). This was a measure that was meant to grant deferred action status to qualifying undocumented immigrants who have children that are either citizens or green card holders who have lived in the United States since 2010. President Obama’s attempted expansion of DACA and implementation of DAPA led to a lawsuit spearheaded by the state of Texas and 25 other Republican-led states seeking to prevent his efforts. The expansion of DACA and the addition of DAPA were stopped by a federal District Court judge, and later affirmed by the Fifth Circuit Court of Appeals. The case made its way to the Supreme Court but ended in a 4-4 tie after the untimely death of Justice Antonin Scalia. Because of the 4-4 tie, the lower court’s ruling stood and President Obama’s attempts to expand DACA and implement DAPA through executive action ultimately failed.

The Power of Executive Orders in Immigration Law

The executive branch of government is given delegated authority from Congress through the Immigration and Naturalization Act (INA) of 1952. The INA is the main set of laws that govern immigration in the United States. The enforcement of the INA allows for broad discretion from the Department of Homeland Security. Section 103 of the INA authorizes the Secretary of Homeland Security to enforce the rules in the INA as he deems necessary. This section laid the groundwork for the power of an Executive Order to set certain policies related to immigration enforcement. President Trump has also wielded the authority of executive orders in relation to immigration law and enforcement, in the form of the Muslim travel ban and an attempt to cut federal funding from “sanctuary cities.” His attempts to end DACA is discussed in the next chapter: President Trump Pushes to Repeal DACA.