Exclusive – Kris Kobach: The DACA Amnesty Must Be Ended

An important deadline is approaching for the Trump Administration. By September 5, President Trump must decide whether or not to repeal President Obama’s DACA (“Deferred Action for Childhood Arrivals”) executive amnesty for illegal aliens.

The deadline was set by ten States, whose attorneys general (or governor, in the case of Idaho) wrote to Attorney General Jeff Sessions demanding an end to the illegal amnesty. The States are Alabama, Arkansas, Idaho, Louisiana, Kansas, Nebraska, South Carolina, Tennessee, Texas, and West Virginia. If DACA is not terminated, the States will take the Trump Administration to court.

Candidate Trump promised during the 2016 campaign that he would end DACA. On August 31, 2016, in Phoenix he correctly described DACA as an “illegal executive amnesty.” And he promised that he would “[i]mmediately terminate President Obama’s two illegal executive amnesties in which he defied federal law and the Constitution.” It is time to make good on that promise.

The DACA amnesty allows virtually any illegal alien up to the age of 31 (as of June 15, 2012, when it was announced) who claims that he entered the United States before the age of 16 to gain “deferred action” and lawful presence in the United States. The alien also becomes eligible for employment authorization. In practice, today illegal aliens up the age of 36 are getting the amnesty. It’s not limited to “children” as the Left is so eager to pretend. It’s estimated that the DACA amnesty could extend to approximately 1.7 million illegal aliens. More than 886,000 have already applied for, and received, the amnesty.

The Obama Administration attempted to defend the legality of DACA on a flimsy theory that has already been rejected by multiple courts –  that “prosecutorial discretion” can be used to confer the benefit of lawful presence on millions of illegal aliens, en masse, without any action by Congress. The theory is ridiculous on its face. Prosecutorial discretion is a decision not to prosecute a specific person based on the evidence at hand; it is not a mass changing of legal status for millions of people.

If the States sue, they will win. As a legal question, it’s not even close. DACA is not illegal for just one reason. It’s illegal for at least five reasons – three violations of federal law and two violations of the United States Constitution:

Federal law violations:

1. 8 USC 1225(b)(2). This statute requires that any alien an ICE officer determines to be inadmissible “shall” be placed in removal proceedings. Congress passed this law in 1996 to stop the “catch and release” policies of the Clinton Administration. Incredibly, DACA orders ICE agents to break this law. In 2012, in the case of Crane v. Napolitano, I represented 10 ICE agents who sued the Obama Administration to stop DACA. Although the Fifth Circuit Court of Appeals eventually ruled that the ICE agents didn’t have standing, the district court in the Northern District of Texas had already held that we were likely to succeed on this claim.
2. The Administrative Procedure Act (APA). Even if there weren’t a statutory barrier to a president issuing the DACA directive, the Department of Homeland Security would still have to promulgate a formal regulation (or “rule”), with notice and public comment, under the requirements of the APA. The Obama Administration violated this federal law as well when it created DACA. The Fifth Circuit already came to this conclusion in Texas v. United States, a case which resulted in an injunction halting the second Obama executive amnesty (which was based on the same theory as DACA).
3. “Prosecutorial discretion” cannot be used to confer federal benefits. Prosecutorial discretion is a decision not to prosecute; it is not a legally-permissible mechanism for granting lawful presence or the valuable benefit of employment authorization. Federal law lays out the only avenues for obtaining either. And DACA doesn’t follow those avenues. The Fifth Circuit reached this conclusion as well in Texas v. United States.

 United States Constitution violations:

1. The Constitutional Separation of Powers. The granting of the right to remain in the United States, plus employment authorization, to a large number of aliens is a legislative action, not an executive action. The “DREAM Act” legislative amnesty, which DACA mimics, has been introduced and has failed in Congress more than twenty times since 2001. If someday Congress decides to enact the DREAM Act, Congress may do so. But a president may not usurp Congress’s authority, as President Obama did, by imposing the DACA amnesty on the country through executive fiat.
2. Article 2, section 3, of the U.S. Constitution. This section of the Constitution requires the president to “take care that the laws be faithfully executed.” The DACA amnesty is an express order not to execute the multiple federal laws that render these aliens unlawfully present. An order not to enforce the law against 1.7 million specially-designated aliens is a clear violation of this constitutional provision.

Any single one of these legal claims is sufficient to torpedo DACA in court. And three have already been given credence by the courts. Attorney General Sessions knows this. As he correctly told the Senate Judiciary Committee in January, DACA is “very questionable, in my opinion, constitutionally.” He is undoubtedly reluctant to defend this blatantly illegal executive amnesty.

The Department of Justice can’t win the case. The Fifth Circuit has already ruled on the central legal question, and that is where the case would be heard. The Trump Administration would lose in court, and the president would lose a significant section of his political base as well. DACA is inconsistent with the rule of law, inconsistent with the president’s own promises, and inconsistent with the president’s principled stand against illegal immigration. It must end.

Kris W. Kobach is the elected secretary of state of Kansas.  An expert in immigration law and policy, he coauthored the Arizona SB-1070 immigration law and represented in federal court the 10 ICE agents who sued to stop Obama’s 2012 executive amnesty. In 2017 President Trump named him Vice Chairman of the Presidential Commission on Election Integrity. He is also a candidate for the office of governor of Kansas. His website is kriskobach.com.