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Thorner: Time to end the Obama Administration’s unconstitutional DACA program



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By Nancy Thorner - 

Much has been said and written about the Deferred Action for Childhood Arrivals (DACA) program, but few individuals outside of D.C. remember how the federal program was first illegally and unconstitutionally instituted by former President Barack Obama.

As long as the Democratic Party held power, President Obama was willing to work with Congress to pass major legislation, but when the Democratic Party lost the majority necessary to pass legislation in 2010, Obama changed tactics and begin to rely more upon executive authority.

Through executive authority, President Obama announced the DACA program in a Rose Garden speech on June 15, 2012 to mend our nation's immigration policy by making it fair, more efficient, and more just for certain young people sometimes called “Dreamers.” The action was necessary, explained Obama, because Congress had chosen not to act. 

Janet Napolitano, as Homeland Security Secretary at the time, issued a memorandum to guide the actions of U.S. Customs and Border Protection and U.S. Citizenship and Immigration Services as to those who came to the U.S. at a young age against their will and who also weren't a danger to society.

The memo provided the following enforcement standards: 
  • An immigrant came to the United States under the age of 16;
  • has continuously resided in the United States for [at] least five years preceding the date of this memorandum and is present in the United States on the date of this memorandum;
  • is currently in school, has graduated from high school, has obtained a general education development certificate, or is an honorably discharged veteran of the Coast Guard or Armed Forces or the United States;
  • has not been convicted of a felony offense, a significant misdemeanor offense, multiple misdemeanor offenses, or otherwise poses a threat to national security or public safety; and
  • is not above the age of 30.

Napolitano was careful to emphasize this was not a legislative act but rather an act of discretion. Her memorandum did not confer a “substantive right, immigration status, or pathway to citizenship, because only Congress acting in its legislative capacity could confer such privileges; however, because of "inaction" by elected representative to pass the DREAM Act, Obama's Executive order was deemed necessary.  Inaction, however,  is not a valid choice under the Constitution.

Criminal arrest histories of DACA recipients

Following is a June 2018 report showing Criminal Arrest Histories of the Deferred Action for Childhood Arrivals (DACA) requestor population. The data contains both criminal and civil information of those approved and denied under DACA, even though they did not necessarily result in actual convictions.

Among the findings of the release: 
  • Almost 8-percent of total DACA requestors (59,786 individuals) had arrest records as of the date the systems were queried, which included offenses such as assault and battery, rape, murder, and drunk driving, among others. “Requestors” includes individuals approved and denied DACA.
  • Of those individuals whose DACA requests were approved and had one or more arrests or apprehensions, 53,792 were arrested or apprehended prior to their most recent approval.  
  • Approximately 13-percent (7,814) of approved DACA requestors with an arrest had an arrest after their grant was approved and prior to renewal.
  • 54.8-percent of DACA requestors with more than one arrest (17,079) most recently had a DACA case status of “approved” as of the date the systems were queried.
  • 199 individuals who requested DACA had 10 or more arrests. Of those, 51 most recently had DACA case status of “approved,” as of the date the systems were queried.
  • Of the total 888,765 DACA requestors, 797,297 had no arrests or apprehensions, and 710,842 were approved.
As to the age of DACA recipients: Those applying had to be at least 15 years old but younger than 31 as of June 15, 2012.  It's now seven years past that date, yet some of the DACA recipients who renewed their status are now in their late 30's.
USCIS data also shows that the median age of active DACA recipients as of June 30, 2019, was 25 years old. The vast majority — 82.3% — are still under 31. But 98,060 (14.8%) are between 31 and 35, and 18,640 (2.8%) are between the ages of 36 and 38.
Misgivings about DACA were expressed by former USCIS Director L. Francis Cissna:
"The truth is that we let those with criminal arrests for sexually assaulting a minor, kidnapping, human trafficking, child pornography, or even murder be provided protection from removal. Yet the courts rule that we are unable to change this policy – even though those with criminal histories are getting through the system and permitted to remain in the country, despite having a high number of arrests for any types of crimes before or after receiving DACA protection.”
Nearly 60,000 immigrants with arrest records — including 10 accused of murder — have been allowed to stay in the United States under the Obama-era Deferred Action for Childhood Arrivals (DACA) program. 
Questionable wisdom of DACA program
Hans A. von Spakovsky, a senior legal fellow at The Heritage Foundation, wrote about the questionable wisdom of the policy of allowing DACA recipients to spend the rest of their lives in the U.S. to eventually become citizens, as many Democrats in Congress advocate.  Following are von Spakovsky's thoughts about DACA.
"The media portrayal of DACA beneficiaries paints a uniformly rosy picture of highly educated, fluent individuals.  But that is not in accord with the facts.
For example, according to the most recent figures only 49 percent of DACA beneficiaries have attained a high school education – despite a majority of them now being adults.
Almost no background checks were conducted by the Department of Homeland Security, resulting in illegal immigrants with criminal backgrounds being accepted into the DACA program, including members of the MS-13 criminal gang.
And one study estimates that perhaps as many as a quarter of DACA-eligible illegal immigrants are functionally illiterate in English, while another 46 percent have only “basic” English ability.
Providing amnesty and potential citizenship to DACA recipients and other illegal immigrants before we have a secure border will only encourage even more illegal immigration, just as the 1986 amnesty in the Immigration Reform and Control Act did.
That law provided citizenship to almost 3 million illegal immigrants and was supposed to solve the problem of illegal immigration. Yet within 10 years, there were another almost 6 million illegal immigrants in the U.S.
The federal government should be concentrating on enhancing immigration enforcement and border security to stem the flow of illegal immigrants into the country and reduce the number of them already in the interior of the U.S.
Until we achieve those goals, it is premature to consider any kind of benefits for any immigrants in the U.S. illegally."
The end of DACA?
On Sept. 5, 2017, the Trump administration announced it would slowly end the program. Obama attacked Trump as being “heartless” and “cruel” for ending his DACA program. Unfortunately for Obama and the Democrats, there was plenty of evidence that DACA was a disaster and left our country vulnerable. President Trump was only doing what a good leader would do and protect his citizens.
On November 12, 2019, the Supreme Court heard arguments for and against termination of DACA. The conservative majority of justices seemed inclined to endorse the Trump administration’s claim that maintaining the unconstitutional program exceeds the scope of presidential authority, although it is not yet clear when the court will rule on the matter.
As senior legal Heritage fellow Hans A. von Spakovsky related:
“The Supreme Court has a duty to take up the Trump administration’s DACA appeal and throw out actions by lower courts that are not in accord with the Constitution and federal immigration law. That action would send this issue of whether the DACA program should exist back to where it belongs – not to the president, as President Obama mistakenly believed, but to Congress.”


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  1. Criminal Obama abused his power and unlawfully fabricated a law using an executive order. Only congress has the authority to legislate. The granting of the “executive Power” to the President is not a blank check giving him power to do whatever he wants. The “executive Power” is merely the power to put into effect, to implement, those Acts of Congress which are within Congress’ enumerated powers.

  2. This is where the Left shops for Leftist judges. Happens all the time.
    Trump should have been able to issue an EO rescinding Obama’s EO.
    That simple.
    of course some Left wing judge ‘stops’ that.
    Trump should go ahead and ignore such ridiculous rulings and proceed anyway. I know this seems a little hard line but to not do so means permanent defeat.