'DREAMing' Through the Separation of Powers

The chief continuing political controversy of the last decade has concerned immigration, and the status of the “Dreamers” and their parents has led the way. That replacement of statutory immigration law by executive action, promulgated by President Obama for the Dreamers in 2012, has now been endorsed by President Biden. It has been the subject of two Supreme Court decisions. Last month, a federal district court in Texas fired the latest salvo by issuing an injunction freezing Obama’s 2012 executive edict, the Deferred Action for Childhood Arrivals (DACA). The court concluded that it was not and could not possibly be justified as a permissible act of the executive branch.

In June 2012, President Obama had the Department of Homeland Security (DHS) issue the DACA Memorandum as a matter of “prosecutorial discretion” allowing the children of illegally-entered immigrant parents to remain in the country in violation of civil and criminal provisions of the Immigration and Nationality Act (INA). These were, Obama called them, “Dreamers.” “They are American in their heart . . . Put yourself in their shoes.” Proclaimed at the beginning of the Congressional and Presidential elections cycle of that year and relentlessly promoted by the media ever since, DACA was emotionally and politically astute in its substance and timing. These are just innocent kids who are not responsible for their parents’ violations of the immigrant laws! Both houses of Congress at the time were controlled by Republicans, and they did nothing. Who wants to be against kids? And as federal district judge Andrew S. Hanen has observed in his new decision considered below, DACA “garnered much national media attention and its recipients evoke the sympathy of the nation.”

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