In the previous chapter, President Obama Creates DACA Via Executive Order, we discussed how DACA came to be and how President Obama was able to effectively use an Executive Order to announce and implement DACA. President Trump sought to blaze a different path with regard to immigration policy in the United States, with one of his biggest goals being the elimination of DACA program. Trump campaigned on a much tougher stance on immigration and enforcement, declaring that he intended to repeal DACA on the first day of his presidency.

Trump Administration’s Stance on Immigration Generally

President Trump made it clear early in his initial campaign that he would be taking a much more restrictive approach on immigration policy in the United States than President Obama and other previous presidents. His campaign for president was launched with inflammatory remarks against Mexicans and other Latin Americans in this Country, calling them “drug dealers, criminals, and rapists.” His 2016 campaign came with a promise to build a wall along the border with Mexico to stop illegal immigration, and further that Mexico would pay for the wall themselves. During his State of the Union address in January 2018, President Trump laid out his four main objectives relating to immigration law and policy, they are:

• Increased funding for border security,
• Ending the visa lottery,
• Tighter restrictions on family-based immigration, and
• A path to citizenship for those eligible for the DREAM Act/ DACA

The announcement of President Trump’s four main objectives didn’t set anything into law nor have any actual effect on anything by themselves. These points were made by the President in an effort to direct Congress to legislate and pass comprehensive immigration reform. As of this writing, this reform has not taken place, and President Trump took it upon himself to try to accomplish some of his immigration policy objectives through the power of Executive Orders. 

Trump’s Approach to Executive Orders

With a majority Republican Senate behind him, President Trump sought to push the power of the Executive Order with many proposed actions. From the time President Trump took office in January 2016 until July 2020, the President has signed over 400 different Executive Orders relating to immigration law and policy. These Executive Orders have changed the policy and requirements of many areas of immigration law. They have also looked to ban the entry of certain people in the United States based on their country of origin and religion and attempted to rescind the protected status of many immigrants currently residing in the United States in programs such as DACA. Many of President Trump’s Executive Orders relating to immigration law and policy were hugely controversial and considered by many to be racist.

Trump’s Controversial Executive Orders 

Some of President Trump’s most controversial Executive Orders include:

• Protecting the Nation from Terrorist Attacks by Foreign Nationals, aka the “Muslim travel ban.” This Order suspended citizens from seven majority-Muslim countries from entering the United States for 90 days. The countries on the list were Iraq, Iran, Libya, Somalia, Sudan, Syria, and Yemen. After a series of court battles, the United States Supreme Court later allowed a later version of the travel ban.

• Executive Order 13768: This Order sought to increase immigration enforcement and threaten withholding of federal funding from “sanctuary cities” if they did not follow Trump’s Order. This funding had already been legislated and approved by Congress. This Order was later found unconstitutional as a violation of the separation of powers and the Fifth and Tenth Amendments to the Constitution.

• Mexican border policy of “zero tolerance” and family separation: This practice involved the separating of migrant children from their parents after they are apprehended at a border crossing. This included people who were applying for asylum.

• Increased restriction and scrutiny on asylum claims: This policy stated that any claims relating to domestic violence or gang violence by individuals or groups that are not government actors will not qualify for asylum. 

• Attempted rescission of DACA: This is discussed in detail below.

These are just a few of President Trump’s most controversial Executive Orders. While many orders have resulted in litigation, President Trump has been successful in adopting and implementing many immigration policies. One such example of a successful Executive Order by President Trump in rolling back a proposed Obama Administration policy is that of the rescission of the Deferred Action for Parents of Americans (DAPA).

Trump Fully Rescinds Deferred Action for Parents of Americans (DAPA)

On June 15, 2017, then-United States Secretary of Homeland Security John Kelly officially rescinded DAPA, the proposed Obama policy that accompanied the attempted expansion of DACA. DAPA was never actually implemented as it was put on hold while the Texas-led lawsuit against the expansion of DACA went forward, which also included a claim against the adoption and implementation of DAPA. If DAPA would have been implemented, undocumented parents would be eligible for DAPA protection if:

• The applicant has continuously lived in the United States since January 1, 2010,
• The applicant was physically present on the day DAPA was announced; November 20, 2014,
• The applicant was physically present when he or she applies to the program,
• The applicant did not have lawful status on the day DAPA was announced; November 20, 2014,
• As of November 20, 2014, the applicant had a child who is either a United States citizen or lawful permanent resident (green card holder),
• The applicant meets criminal history requirements, and
• The applicant does not pose a threat to national security.

While the potential exists for DAPA or another similar measure to be implemented under President-Elect Biden, DAPA as of now is dead. 

Trump Announces End of DACA Via Executive Order

On September 5, 2017, former Attorney General Jeff Sessions announced that DACA was being rescinded stating that the Department of Justice could not defend the “overreach” by President Obama in implementing DACA back in 2012. He proclaimed that there is “nothing compassionate about the failure to enforce immigration laws... the compassionate thing is to end lawlessness and enforce our laws.” The Department of Homeland Security stated that while they won’t be specifically targeting DACA applicants for deportation, they could still be arrested and deported if they come into contact with immigration officers. In his Executive Order, President Trump ended DACA by simply stating that President Obama was overreaching his authority, and that this decision was in line with his hardline immigration agenda. 

Congress’s Attempts to Legislate in Response to DACA Repeal

President Trump’s announcement of his intent to end DACA in September 2017 came with a 6-month delay to allow for Congress to pass new immigration legislation for a more permanent solution regarding DACA and other hot-button immigration issues. Although a number of potential solutions were introduced into Congress, none passed. The proposals made in Congress regarding immigration legislation included:

• The DREAM Act of 2017
• Recognizing America’s Children Act
• The American Hope Act
• BRIDGE Act
• Broader Options for Americans Act

A handful of other more limited bills were also considered to specifically address DACA recipients which also failed to pass. The March cutoff date for DACA was postponed by the United States Supreme Court until October 2018 to allow DACA recipients to remain protected from deportation, a blow to the Trump Administration’s attempts to invalidate DACA which also led to further litigation.

The Inability of Congress to Act Leads to Litigation

President Trump’s ultimate stance on the issue of DACA was that the Obama administration overstepped their constitutional authority in the adoption and implementation of DACA by “going around” Congress and illegally “making law.” In his announcement of his intention to end DACA, President Trump also challenged Congress to address the issue and act in a tweet saying, “Congress, get ready to do your job – DACA!” As discussed in the previous section, a handful of immigration proposals were made in Congress during the six-month period that the Trump Administration allowed for new legislation before DACA was set to be cut off in March 2018. These attempts at legislation of new immigration laws in Congress ultimately all went nowhere. The litigation and court decisions that followed are discussed in the next chapter: Multiple Courts Prevent President Trump from Repealing DACA.