Could Obama's efforts to help 'Dreamers' be used to hurt them?
Posted November 29, 2016
Donald Trump’s surprise victory in the presidential contest has tossed into legal limbo roughly 750,000 young undocumented immigrants who arrived as children, a group often referred to as “Dreamers.”
In 2012, President Barack Obama offered the Dreamers “deferred immigration status,” using executive discretion to promise not to deport these young people and asking in exchange that they come out of the shadows to get IDs and Social Security numbers and begin paying taxes.
The catch was that the offer, called Deferred Action for Childhood Arrivals, would only be good so long as someone who shared Obama's perspective sat in the Oval Office. With immigration skeptic Trump about to take over, many now fear that voluntarily supplied data intended to mainstream the Dreamers could now be used against them.
Major immigrant advocacy groups and some large public universities are now advising their clients and students not to apply for the program, Business Insider reports.
The DACA program, seen at its inception as proof that a robust presidency could move when Congress refused, now is beginning to look like more of a cautionary tale on the limits of executive authority.
Changing the law
Earlier this month, a group of Democratic lawmakers sent a letter to the White House asking the president to preemptively pardon the DACA Dreamers before Trump takes over.
The White House did not take the appeal for pardons seriously, emphasizing in a statement that such a move could not legalize immigration status, something that "only Congress can create legal status for undocumented individuals."
Legally, all DACA amounted to was a use of "prosecutorial discretion" not to pursue a crime, which the executive branch always enjoys, Ilya Somin, a constitutional law professor at the Antonin Scalia Law School at George Mason University in Virginia told the Deseret News earlier this month.
“There is vastly more federal law than any president can enforce,” Somin said, drawing a distinction between refusing to enforce laws and any effort to invent or expand a law.
Whether Obama was changing the law or simply changing how he enforced it became a hot issue after the president speaking at a 2014 rally in Chicago, told the crowd, "I just took action to change the law."
"At the time, advocates and the administration emphasized that providing the information would protect the Dreamers and was worth the risk," the Los Angeles Times notes. "But with Trump vowing to deport millions of people who are in the country illegally and many fearing he may let the DACA program expire, Dreamers are worried the information they provided will be used to deport them."
Obama took the action, dubbed Deferred Action for Childhood Arrivals, in 2012 after Congress proved immobilized between those pushing for tougher enforcement of immigration law and those looking to legalize those already here.
While Obama could not actually legalize these immigrants, he could simply refuse to prosecute them. DACA recipients were able to get drivers licenses, in-state tuition at public universities, credit cards and Social Security cards, and employment.
Critics had warned at the time that DACA would be vulnerable to future elections because it lacked the force of law. But the Obama administration moved forward anyway, collecting personal data and even the fingerprints of the young people who stood to benefit.
The dilemma now facing Dreamers highlights the limitations of Obama’s extensive use of his “pen and phone” — executive actions and calling people together — to circumvent Congress.
A state of shock
International Business Times reports that over 665,000 people had applied for DACA since 2012, after Obama urged young adults who had arrived here illegally as children to "come out of the shadows and get right with the law."
"The action we are asking the president to take is a matter of life and death," Rep. Luis Gutierrez, D-Ill, said at a press conference, which was posted on YouTube. "We are asking the president to pardon them for their undocumented status, which by definition happened while they were juveniles and children, brought here by their parents."
“Everybody is in a state of shock. We don’t know what is going to happen. We don’t know if his extremist nasty rhetoric will go into policy,” David Leopold, an immigration lawyer, told ABC News. “I have corporate clients asking questions they never asked before. Every client is asking how Trump’s election changes things ... someone in lawful status, green card holders, people going through legal system or people who are undocumented and have DACA ... ‘What do I do now?’ ... ‘Am I going to get deported?’
“Right now, many families have been plunged into crisis,” Frank Sharry, executive director of the pro-immigrant group America’s Voice, told Bloomberg. “Many undocumented families are trying to figure out what to do. If their address is known by the government, should they move? Should they go back to their home country rather than try to weather four years of a Trump administration? Others are saying we should stand up and fight.”