Constitutional concerns, separation of powers, and more that you need to know about DACA

Michael Bordonada
Published Feb 15, 2024



Facts About

DACA stands for Deferred Action for Childhood Arrivals program that was started by the Obama administration in 2012. The program was created by executive memorandum and not by any laws passed by Congress. A memorandum has most of the same restrictions as orders, but they are not put in the federal registrar or have to list the legal authority. There have been court cases that state that orders are not supposed to create laws, which this did. Since then there have been several court cases on the program, but the Supreme Court refused to rule on the legality.

Legality Questions

The problem is that DACA was meant to be a stopgap until Congress passed laws stating specifically that those brought to the US as children were safe from deportation. As of 2021, this has not happened, even after multiple attempts by some members of Congress to make it happen. This means the memorandum can be ruled on whether it is backed by the legal authority of the President. Until July 16, 2021, this had not occurred, as the courts admitted to ruling in a manner not consistent with established law. The 2021 ruling was specifically about the legality.

Limbo Status

Because Congress has not changed the law, people who are protected under DACA have to worry about the courts ruling on the legality or a President removing the memorandum. While President Trump attempted this, the courts held in place for what they called arbitrary and capricious reasons. The ruling by Judge Andrew Hanen is on the legality of the program and halted all future applications. This means that the issue will be appealed and this will determine what the law says about the program. It means that the people protected will wait for a ruling for their future.

Immigration Reform

There are many people calling for immigration reform, not just on this issue. There are many who discuss immigration that talk about how convoluted the laws in place are. This puts many people in jeopardy that want to immigrate to the United States, no matter where they are from. There are people who have served in the Armed Services honorably and have not been allowed to become citizens. There are many cases of issues and this means that people of all political persuasions have attempted fixes. This turns into a political battlefield with the lives of many affected.

Memorandum Legality

In all instances, courts have ruled that executive orders and memorandums are not considered law. The original cases against the Trump administration policy had nothing to do with the legality of the executive memorandum. The cases were about the program being halted in an appropriate manner. The Supreme Court ruled in Regents of University of California v United States Department of Homeland Security that they were not ruling on DACA or the policies involved. That changed with the ruling by Judge Hanen. His ruling is that no federal law makes it legal, though it is part of America now.

The issue with DACA will remain in limbo until there is a definitive law passed one way or the other. That means that many of those who were raised in the United States could be sent to nations that they have no clue about and have no family or friends to help them. At the same time, they are breaking the laws of the United States by being here. It is an issue that needs to be settled in Congress or the courts and it is looking like the courts are the ones that will be getting that large responsibility.

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