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Senators Dick Durban (D-Illinois) and Orin Hatch (R-Utah) first introduced the Development, Relief and Education for Alien Minors (DREAM) Act in Congress in 2001. The DREAM Act proposed a mechanism for alien minor children to obtain legal status in order to remain in the United States. A similar bill had been introduced earlier and several similar bills were introduced in later years. None of the proposed bills received sufficient votes in Congress to become law.

President Barak Obama created the Deferred Action for Childhood Arrivals (DACA) program on June 15, 2012. The people affected by this program are often called “Dreamers” in harmony with the DREAM Act. Under the President’s direction, then Secretary of Homeland Security Janet Napolitano, issued a Memorandum regarding the subject, “Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children.” You can read a copy of the Memorandum on the U.S. Department of Homeland Security (DHS) website by clicking here.

The Memorandum indicates that the Secretary is exercising prosecutorial discretion and directs the Department of Homeland Security to defer deportation of illegal aliens meeting specified requirements, rather than enforcing federal immigration statutes as written.

On November 20, 2014, in a live television broadcast to the nation, President Obama unveiled a similar program concerning the Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) to defer deportation of illegal aliens who are parents of children who are either American citizens, or lawful permanent residents of the United States. In that broadcast, the President also expanded the scope of the previously announced DACA program. You can see a YouTube video of the broadcast here.
You can read a transcript of President Obama’s speech on the Whitehouse Archives website here.

You can read the November 20, 2014, Memorandum establishing DAPA issued by Secretary of Homeland Security, Jeh Johnson, on the DHS website here.

Article I, Section 8, Clause 4 of the United States Constitution specifically grants power to Congress, “To establish an uniform Rule of Naturalization.” You can read the U.S. Constitution here. You can also read Article I, Section 8, Clause 4 here.

Therefore, it is Congress, and not the President alone, who has the Constitutional duty and power to make laws on naturalization. Immigration is a part of that duty. However, Congress did not pass any law authorizing DACA or DAPA. Absent a law, the President is constitutionally required to “faithfully execute” the law, not simply ignore or amend it by Executive Order or memorandum.

I have a duty to uphold the Rule of Law and the U.S. Constitution, especially if it affects the state of Idaho. Because of the Constitutional issues raised by the process and the direct impact on the state, Idaho joined Texas, and other states, in bringing a lawsuit against the federal government challenging the process by which DAPA was created and not the substance of the program. Texas v. United States, 86 F. Supp. 3d 591 (S.D. Texas 2015). The states sought a preliminary injunction and challenged the creation of the DAPA program by alleging that the “Secretary’s actions violate the Take Care Clause of the Constitution and the Administrative Procedure Act (APA).” Texas v. United States, 86 F. Supp. 3d at 607.

Among other things, Federal District Judge Andrew Hanen held that in creating the DAPA program, President Obama’s Administration, “clearly legislated a substantive rule without complying with the procedural requirements of the Administration [sic] Procedure Act.” Texas v. United States, 86 F. Supp. 3d at 677. In other words, the executive branch of the federal government violated the law in establishing the DAPA program and, therefore, the District Court issued the requested preliminary injunction. You can read the Federal District Court decision here.[1].

The federal government appealed the case to the Fifth Circuit Court of Appeals and claimed that the District Court erred in issuing the preliminary injunction. A majority of the panel of Fifth Circuit judges found, among other things, that, “the INA [Immigration and Nationality Act] flatly does not permit the reclassification of millions of illegal aliens as lawfully present and thereby makes them newly eligible for a host of federal and state benefits, including work authorization.” Texas v. United States, 809 F. 3d 134, 184 (5th Cir. 2015). You can read the 5th Circuit Court of Appeals decision here.

The federal government appealed the case to the United States Supreme Court. In this instance, the decision was a single written line that provided, “the judgment is affirmed by an equally divided Court.” United States v. Texas 579 U.S. ____ (2016), slip op. No. 15-674 at 1 (June 23, 2016). You can read the Supreme Court decision here.

DACA has the same constitutional infirmities that pervade DAPA. However, rather than filing a lawsuit against the federal government, I joined other attorneys general in sending a letter requesting President Trump to repeal DACA. You can read a copy of the letter here. The President repealed DACA but gave Congress time to pass legislation addressing the issue. You can read the Attorney General Jeff Sessions remarks ending DACA here.

Soon after President Trump’s announcement, the University of California (with Janet Napolitano as its president) and a number of other parties sued the Department of Homeland Security alleging that President Trump’s elimination of the DACA program was arbitrary and capricious.

Federal District Judge William Alsup agreed with them and among other things, held that the “plaintiffs have shown that they are likely to succeed on the merits of their claim that the rescission was arbitrary and capricious” and, therefore, violated the APA [Federal Administrative Procedure Act]”. Regents of the University of California v. United States Department of Homeland Security, ___ F. Supp. 3d ____, _____ 2018 WL 339144.

Although DACA was created in violation of the APA, the Federal District Court prohibited the repeal of DACA because the repeal did not comply with the APA.

The federal government appealed the district court decision to the Ninth Circuit Court of Appeals. The federal government also took the unusual step of seeking review by the United States Supreme Court before the circuit court had considered the matter. The Supreme Court declined to review the matter and expressed its view that the Ninth Circuit Court would expeditiously review the case.

This problem begs to be solved in accordance with the Rule of Law. I am hopeful that Congress will fulfill its constitutional responsibility and, once and for all, end this debate.