DACA constitutionality hasn’t been settled in court

New York Attorney General Eric Schneiderman is leading a lawsuit against the Trump administration over its decision to rescind a deferred deportation program, claiming the program itself has not been ruled unconstitutional.

U.S. Attorney General Jeff Sessions announced Sept. 5 the end for Deferred Action for Childhood Arrivals (DACA), an Obama-era program that protected from deportation immigrants who came to the United States as children and live here illegally.

We found Schneiderman is right: DACA’s constitutionality has not been determined by courts.

DACA is based on a June 2012 memorandum by Janet Napolitano, who was Secretary of the Department of Homeland Security.

Napolitano’s memo outlined prosecutorial discretion so that resources would be used to remove immigrants who met the department’s priorities and to protect from deportation young immigrants who met specific criteria.

Napolitano said immigration laws were “not designed to be blindly enforced” without considering individual cases and circumstances … Indeed, many of these young people have already contributed to our country in significant ways. Prosecutorial discretion, which is used in so many other areas, is especially justified here,” she wrote.

DACA is a policy, not a law. It also does not grant legal immigration status to the approximately 800,000 people who were approved for it.

Many have argued that creating DACA through the executive branch rather than through the legislative process is an overreach of executive power.

There’s debate among experts on whether DACA is constitutional, but there is agreement that no court has ruled on its constitutionality.

A lawsuit to challenge DACA was dismissed for lack of standing, and that decision was upheld by the U.S. Court of Appeals for the Fifth Circuit, said Anil Kalhan, an associate professor of law at Drexel University. “So there was never any adjudication on the merits,” he said.

"To my knowledge, no court has ruled DACA 2012 as unconstitutional and the one to even reach the court was dismissed on jurisdictional grounds," concurred Shoba Sivaprasad Wadhia, a law professor and director of the Center for Immigrants' Rights Clinic at Pennsylvania State University. Wadhia and more than 100 other immigration law professors and scholars wrote a letter to Trump providing legal analysis on the executive branch's legal authority to implement DACA.

“It’s a straightforward fact that no court has declared DACA unconstitutional and that the one appellate court that considered a related program declined to address the issue,” said Amy Spitalnick, spokeswoman for Schneiderman.

Texas and 25 other states won a lawsuit against the Obama administration by having a federal district judge block implementation of an expanded version of DACA and another deportation reprieve program, Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA). An appeals court upheld the ruling, and in 2016 the Supreme Court ruled 4-4, leaving the lower court’s ruling in place.

When the Texas court temporarily blocked those programs, it was not on constitutional grounds, Kalhan said, “but rather based on a conclusion that Obama administration should have instituted the policy using notice and comment rule-making, rather than using the more informal guidance document that it issued.”

A final, binding precedent even on that basis was not set either, since it was only a preliminary injunction and the Supreme Court deadlocked, Kalhan said.

Our ruling

Schneiderman said, “No court has held (Deferred Action for Childhood Arrivals) unconstitutional.”

While there is debate on the constitutionality of DACA, that has not been determined by courts.

We rate Schneiderman's statement True.

“No court has held (Deferred Action for Childhood Arrivals) unconstitutional.”

— New York Attorney General Eric Schneiderman on Wednesday, Sept. 6, 2017 in an interview on The Rachel Maddow Show