The Trump administration announced Tuesday it would begin to unwind an Obama-era program that allows younger undocumented immigrants to live in the country without fear of deportation, calling the program unconstitutional but offering a partial delay to give Congress a chance to address the issue.
The decision, after weeks of intense deliberation between President Trump and his top advisers, represents a blow to hundreds of thousands of immigrants known as “dreamers” who have lived in the country illegally since they were children. But it also allows the White House to shift some of the pressure and burden of determining their future onto Congress, setting up a public fight over their legal status that is likely to be waged for months.
In announcing the decision at the Justice Department, Attorney General Jeff Sessions said that former president Barack Obama, who started the program in 2012 through executive action, “sought to achieve specifically what the legislative branch refused to do.”
He called it an “open-ended circumvention of immigration law through unconstitutional authority by the executive branch,” and said the program was unlikely to withstand court scrutiny.
The Department of Homeland Security said it would no longer accept new applications for Deferred Action for Childhood Arrivals, which has provided renewable, two-year work permits to nearly 800,000 dreamers. The agency said those enrolled in DACA will be able to continue working until their permits expire; those whose permits expire by March 5, 2018 will be permitted to apply for two-year renewals as long as they do so by Oct. 5.
New applications and renewal requests already received by DHS before Tuesday will be reviewed and validated on a case-by-case basis, even those for permits that expire after March 5, officials said.
Trump administration officials cast the decision as a humane way to unwind the program and called on lawmakers to provide a legislative solution to address the immigration status of the dreamers. Senior DHS officials emphasized that if Congress fails to act and work permits begin to expire, dreamers will not be high priorities for deportations — but they would be issued notices to appear at immigration court if they are encountered by federal immigration officers.
There are no plans for DHS to share personal information, including home addresses, of dreamers who registered for work permits with enforcement officers unless there is an immediate concern over national security, the officials said.
Trump had deliberated for weeks as pressure mounted on him to fulfill a campaign promise to end DACA, which he repeatedly called an abuse of executive authority by his predecessor. The president had equivocated since taking office, vowing to show “great heart” in his decision and saying dreamers could “rest easy.”
But a threat from Texas and several other states to sue the administration if it did not end DACA by Tuesday forced Trump to make a decision. Several senior aides, including Sessions, an immigration hard-liner who had said the administration would be unable to defend the program in court, lobbied the president to end DACA. Others, including Chief of Staff John F. Kelly, the former DHS secretary, cautioned that terminating the program would cause chaos for immigrants who enjoy broad popular support.
Sessions wrote a memo Monday calling DACA unconstitutional, leading acting Homeland Security Secretary Elaine Duke to issue a memo Tuesday to phase out the program. It is unclear whether the states will still move forward with legal action.
“As a result of recent litigation,” Duke said in a statement, “we were faced with two options: wind the program down in an orderly fashion that protects beneficiaries in the near-term while working with Congress to pass legislation; or allow the judiciary to potentially shut the program down completely and immediately. We chose the least disruptive option.”
Sessions said Obama’s move to create the program represented an unconstitutional power grab, given that Congress had defeated legislative proposals to provide a path to citizenship for dreamers in 2010.
Sessions asserted that the Obama administration’s move to create DACA helped contribute to a surge of unaccompanied minors from Central America who entered the country without authorization in 2014. Immigrant rights groups have said the minors were fleeing violence, including gangs and drugs, in their home countries and sought protections under U.S. asylum laws.
“The Department of Justice cannot defend this overreach,” Sessions said.
He added that the program was unlikely to withstand a court challenge and would likely be enjoined, potentially stripping immigrants of their work permits immediately.
House Speaker Paul D. Ryan (R-Wis.), who last week had urged Trump not to end the program until Congress acted, said in a statement that DACA was a “clear abuse of executive authority” by Obama.
“It is my hope that the House and Senate, with the president’s leadership, will be able to find consensus on a permanent legislative solution that includes ensuring that those who have done nothing wrong can still contribute as a valued part of this great country,” Ryan said.
Immigrant rights groups quickly denounced Trump’s decision. More than 150 immigration activists protested front of the White House Tuesday morning, calling the president a “liar” and a “monster.” Javier Palomarez, president of the U.S. Hispanic Chamber of Commerce, announced he was resigning from Trump’s presidential diversity committee over the “disgraceful action.”
Trump’s decision “is inhumane, cruel and shameful,” said Vanita Gupta, president of The Leadership Conference on Civil and Human Rights. “There is no legal, ethical, or moral justification for ending DACA, which is a lawful program. President Trump manufactured this unnecessary crisis. Congress must now act immediately to pass the Dream Act without any partisan, divisive amendments to permanently protect these young people.”
And in a sign of the political nature of the issue, House Minority Leader Nancy Pelosi (D-Calif.) quickly sent out a fundraising pitch to Democratic supporters, calling the decision “quite possibly the cruelest thing President Trump has ever done.”
The president was reportedly torn over the decision, according to White House officials, split between his desire to appear tough on illegal immigration and his personal feelings toward the dreamers, most of whom have lived in the United States most of their lives.
The move comes as the president, whose approval ratings had tumbled in this first seven months, has sharpened his focus on immigration enforcement as he seeks to rally his conservative base. He pardoned former Arizona sheriff Joe Arpaio, who had been convicted of criminal contempt for ignoring a court order to stop arresting immigrants without reasonable suspicion they had committed a crime.
Trump’s tough rhetoric on immigration enforcement, coupled with a pair of executive actions on immigration in January to bolster enforcement, has led to a sharp decrease of immigrants attempting to cross the southern border without authorization. Illegal crossings into the United States from Mexico have dropped 46 percent in the first seven months of the year compared to the same period in 2016, administration officials said. At the same time, the number of undocumented immigrants removed from the interior of the country has increased by 32 percent, the officials said.
The Trump administration has said it is not seeking to deport dreamers unless they commit other crimes. But immigrant rights groups have highlighted several cases in which immigrants enrolled in DACA have been apprehended by Immigration and Customs Enforcement; in some of those cases, the immigrants have been released after providing documentation of their DACA status. Advocates have warned that more dreamers, who were required to register their addresses and other personal information with DHS to participate in the program, could be targeted for deportation once their work permits are revoked.
Before leaving office, Obama vowed to speak out if the Trump administration began targeting dreamers, most of whom have spent most of their lives in the United States. Obama created DACA through executive action in 2012.
The dreamers “for all practical purposes are American kids,” Obama said at his final news conference in January. “The notion that we would just arbitrarily or because of politics punish those kids, when they didn’t do something themselves … would merit my speaking out.”
In the days leading up to Trump’s announcement, immigrant rights groups, many Democrats and some Republican mayors rallied to promote the positive aspects of the program. Local leaders pledged to fight to protect dreamers from deportation, but they acknowledged their limitations.
“We don’t have formal powers to protect people against federal law,” Los Angeles Mayor Eric Garcetti (D) told reporters in a conference call on DACA this week. He suggested municipalities could choose not to coordinate enforcement actions with immigration agents and try to establish “safe spaces,” including schools and city facilities. But he said: “If individual immigration agents come to certain spaces, there’s no way physically to keep them away.”
Obama had announced the creation of DACA through executive action during the summer of his 2012 reelection campaign, a decision that was viewed inside the White House as politically risky as the president chose to circumvent Congress. The Obama administration defended the legality of the program by citing the precedent of “prosecutorial discretion” in which law enforcement agencies with limited resources set priorities.
With more than 11 million immigrants living in the country illegally, the administration said it was impossible to deport them all and placed the priority on those who committed felonies or had recently entered the country. The announcement buoyed support for Obama among Latinos and Asian Americans, who supported that fall him by more than 70 percent over Republican challenger Mitt Romney.
But in 2015, a federal judge in Texas issued an injunction, blocking Obama’s bid to expand DACA and to create another program modeled after it that would have provided three-year work permits to millions of illegal immigrants whose children are U.S. citizens. Last year, the Supreme Court, after the death of Justice Antonin Scalia, deadlocked 4-4 on the Obama administration’s appeal, leaving the lower court’s injunction, though the ruling did not affect DACA.
In June, Texas, backed by nine other states, threatened in a letter to the Trump administration to challenge DACA in court this fall. The attorneys general of Arkansas, Alabama, Idaho, Kansas, Louisiana, Nebraska, South Carolina, Tennessee and West Virginia, as well as Idaho Gov. C.L. Otter, also signed the letter.
The fight now could shift to Congress to act on a bill to grant permanent legal status to the dreamers. A bill called the Dream Act that would have offered them a path to citizenship failed in the Senate in 2010. Several new proposals have been put forward, including the Bridge Act, a bipartisan bill with 25 co-sponsors that would extend DACA protections for three years to give Congress time to enact permanent legislation.
But the White House and conservative Republicans could hold out for additional provisions to boost border security, such as funding for Trump’s proposed border wall or new measures to restrict legal immigration.
If DACA is shuttered next year, more than 1,000 immigrants stand to lose their work permits each day once the program is rescinded, according to a recent study by the Center for American Progress, a liberal think tank. Business leaders from major companies, including Apple, Facebook and Google, had lobbied the White House not to terminate the program, citing the economic consequences.