CRISTIAN FARIAS: Janet Napolitano on DACA's enduring legacy
For all his efforts to undo the work of the prior administration, President Donald Trump's most striking failure has been his attempt to reverse the Deferred Action for Childhood Arrivals (DACA) program. As secretary of homeland security under President Barack Obama, Janet Napolitano signed the memorandum that put DACA in place. In a legal twist, she's now defending her handiwork in court, this time as president of the University of California, which has thousands of DACA students and is suing to stop the DACA reversal.
Posted — UpdatedFor all his efforts to undo the work of the prior administration, President Donald Trump’s most striking failure has been his attempt to reverse the Deferred Action for Childhood Arrivals program — a reprieve from deportation President Barack Obama issued nearly seven years ago to immigrants who were brought illegally to the United States as children.
In September 2017, Trump ordered an end to the program, known as DACA. The administration argued that it was an improper use of executive power that circumvented Congress and protected people who were breaking the law. But beginning in January of last year, a number of judges put a hold on DACA’s demise, finding the administration’s legal reasoning for ending it weak and in violation of the Administrative Procedure Act. Trump tried to offer a limited, statutory version of DACA as a bargaining chip during negotiations to end the government shutdown. But when the Supreme Court kept those holds in place while the appeals continued, its barter value was eliminated
As secretary of homeland security under Obama, Janet Napolitano signed the memorandum that put DACA in place. In a legal twist, she’s now defending her handiwork in court, this time as president of the University of California, which has thousands of DACA students and is suing to overturn the DACA reversal. So she has a unique viewpoint of the controversy. This interview has been edited and condensed for clarity.
No. (Laughs). I thought it would help a group of individuals who were undocumented in the country who in any circumstance would be low-enforcement priorities. But nonetheless, so long as they didn’t have any protection they were always having to look over their shoulder and, of course, they couldn’t get work authorization. And it just seemed to me that that was just wrong. And when Congress was unable to pass a DREAM Act [which would write DACA-like protections into law and offer a path to citizenship], we began looking at what could the executive branch do. And we settled on the theory that the executive branch always has the authority to establish prosecution priorities. [The Department of] Justice doesn’t prosecute bad-check cases, they prosecute bank fraud cases. And it seems that in immigration enforcement the same theory would apply. That’s what we based the creation of DACA on.
I think it’s because they proceed on the theory that DACA was illegal from its inception. And of course it’s not illegal. The administration, the Obama administration, had the authority to establish priorities for immigration enforcement. And DACA is simply a reflection of that. And I think having announced the rescission of DACA by saying it was illegal to have DACA, they led with their chin.
No. The main component that has the responsibility for carrying out DACA is USCIS [United States Citizenship and Immigration Services]. Those are the folks that help people adjust their citizenship status, so this was in a way very consistent with their ethos. And with respect to ICE [Immigration and Customs Enforcement], if there was any resistance in the field, it never came to my attention.
One, its sheer numbers — close to 800,000-some-odd DACA recipients. And they’re attending colleges and universities. They’re ... some of them have started their own small businesses. They’re homeowners. By now they’re parents. They’re well entrenched in the fabric of U.S. life. And when DACA was announced by the president, it got virtually no pushback. It was popular from the get-go. And the polling on it continues to show that it’s very popular. I think that has helped sustain it. If the administration were going to make a decision to rescind it, there was a right way and a wrong way to do that, and they did it the wrong way.
It wasn’t and it isn’t. It’s a fair exercise of the executive’s authority. And it’s interesting to contrast the administration’s arguments on the travel ban, for example, [which] are based on the broad authority of the executive in enforcing immigration law. And it’s exactly that kind of authority that they’re trying to restrict in the DACA litigation. So consistency isn’t their best thing.
Maybe it links to immigration politics generally, not just about DACA — the feeling that immigrants are here, they’re here against the law, they’re taking jobs away from Americans, they’re depressing wages, they’re taking all these public benefits, and they ought to all be deported. That kind of feeling about immigration generally still spills over to antipathy toward Dreamers, which, as you know, were brought here as children. And most of them really know only the United States as home.
I thought DACA was right then, and I thought DACA was right now. And the only thing that would be better would be for Congress to finally take up some of these immigration issues and resolve them permanently in statute.
Yeah! (Laughs.)
I can only speculate. One speculation is an institutional reluctance to take a case that there’s no urgency about. The DACA program has remained in place since we got the original injunction. And there’s no immediate urgency to taking this case. And to do so would put the court in the middle of whatever is going on between the president and the Congress. So maybe there’s a little recognition that this is not the place where the Supreme Court should be jumping.
It’s either that or TSA Precheck. (Laughs.)
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