This morning (Sept. 5), US attorney general Jeff Sessions, a longtime critic of the Deferred Action for Childhood Arrivals (DACA) policy, announced the Donald Trump administration’s decision to rescind the program. A statement issued shortly after by president Trump echoes much of the announcement, and employs the same rationale for the highly controversial decision as Sessions’ announcement.
But many of the reasons and explanations the two used are misleading and inaccurate, Anil Kalhan, a law professor at Drexel University, told Quartz. Kalhan pointed out a few important lies:
1. DACA provided legal immigration status to illegal aliens
Sessions said that DACA “essentially provided a legal status for recipients for a renewable two-year term, work authorization, and other benefits, including participation in the social security program, to 800,000 mostly-adult illegal aliens.”
This is not true. The program, Kalhan says, “doesn’t grant the equivalent of legal [immigrant] status.” DACA does not, as a green card would, provide permanent security for those who hold it, but simply makes their deportation a non-priority for two years. Being a DACA beneficiary also doesn’t automatically translate into getting a work permit; that has to be obtained through a separate application, as does a permit to travel abroad. (Green card holders can do both without applying for permission.)
Most importantly, unlike those granted by a green card, DACA benefits aren’t permanent, and can be rescinded at any moment.
2. DACA is unconstitutional
Sessions claims that DACA was an “unconstitutional exercise of authority.” That isn’t true; this is his opinion. The issue of constitutionality, Kalhan says, “has never been resolved.”
Furthermore, the arguments that DACA isn’t constitutional are based on the US Supreme Court’s decision to stay a federal judgement on the Deferred Action for Parents of Americans, a similar program to DACA which would allow undocumented parents of US citizens to stay in the country. That program was challenged in a lawsuit filed by 26 states, and ended up to the Supreme Court. The court eventually ended up split in its decision on the case (this was before Antonin Scalia’s seat was filled, and so a tie was possible), so no legal precedent was set. While it didn’t overturn the federal ruling, the DAPA case also didn’t settle the issue of constitutionality.
Trump added in his statement that DACA “cannot be successfully defended in court.” But he has no way of knowing that. The DAPA decision issued by a district court (which was then stayed by the Supreme Court) criticized the Obama administration’s use of executive power to promulgate DAPA, but the main actual legal problem it found with DAPA was a procedural matter: Instead of publishing the proposed regulation and review public comments before implementing it, DAPA went straight into effect.
DACA, too, was implemented without a public comment period. However, this doesn’t mean that DACA will be judged in the lowers courts the same way as DAPA, and there’s also no way to tell whether or not a full Supreme Court (that cannot end up in a tie) would uphold such a judgement.
3. DACA is a amnesty program
DACA is a “unilateral executive amnesty,” Sessions said. This is false. An amnesty is intended as an official blanket pardon of all offenders who receive it. DACA, however, does not cover everyone; Kalhan points out that it only applies to eligible immigrants who are then required to apply and have their individual case evaluated. It’s also only temporary, and doesn’t come cost-free: Recipients have to pay $495 when they apply for their permit, and then again every two years at the time of renewal, whether or not a renewed permit is granted.
4. DACA led to a surge of unaccompanied minors illegally entering the US
DACA, according to Sessions, “contributed to a surge of unaccompanied minors on the southern border that yielded terrible humanitarian consequences.” This is a lie. DACA only applies to illegal immigrants who had arrived in the US prior to June 15, 2007 and have resided in the country for at least five continuous years since—so, Kalhan notes, it would make no sense for minors to cross the border seeking to gain status under a policy that doesn’t cover them. The surge of unaccompanied minors coming through the US southern border has more to do with the political and economic conditions of Latin American countries than with the legal provisions in place in the US.