Constitution Daily

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Government wipes out major Obama immigration order

June 16, 2017 by Lyle Denniston


The Trump administration late Thursday gave itself permission to deport more than 4 million undocumented immigrants, the parents of children who are U.S. citizens or have a legal right to permanently stay in the country. The parents previously had been protected by the Obama administration.

The action nullified a major part of President Obama’s deferred deportation policy, and cut back on the remaining part of it that affects more than a million young people who had been brought to the U.S. by their immigrant parents and had grown up in this country – youths that have come to be called “Dreamers.”

The youths involved will be allowed to stay, but their opportunity to get work permits will be curtailed. The new directive does not say what will happen to those youths if their permits are not renewed; they can apply now only for two-year renewals.

During last year’s presidential campaign, Donald Trump had vowed to end the deferred deportation policy entirely, if he were elected. The new policy represents at least a partial change from that for the youths affected.

Since taking office, President Trump has led a government effort to move aggressively to step up the rate of forced deportation of undocumented immigrants. The government had waited until Thursday, when it faced a deadline set by a federal judge in Texas, to make up its mind what to do about the Obama deferred deportation policy.

The action came even though the courts had not yet completed a full review of whether President Obama had the authority to initiate the policy. A trial on that point has been repeatedly put off in Brownsville, Texas, along the border with Mexico. A trial had still been awaited in the wake of the Supreme Court’s refusal last year – by a 4-to-4 split – to allow the Obama initiative to go into effect.

Government lawyers notified the trial judge of the new DHS position on Thursday night, but asked for a further two-week delay to allow attorneys to work out a way to wind up the case – a sweeping challenge that 26 states had pursued.

The Department of Homeland Security said in a press release Thursday night that its Secretary, John F. Kelly (pictured), had concluded that “there is no credible path toward” to get a ruling in the courts on the legality of the Obama policy. While it did not explain what obstacle it saw, the apparent reason is that the Trump administration itself has abandoned the legal defense of the policy, and, as a result, the legal controversy has ceased to exist.

So far, the lower courts had only ruled temporarily on parts of the 26 states’ challenge, and had not made any final judgment on any legal point and had never even addressed the constitutionality of the policy.

The Brownsville judge blocked enforcement of the Obama policy, but only for a procedural reason. The U.S. Court of Appeals for the Fifth Circuit similarly barred enforcement, but did so after finding that Obama had probably violated federal immigration laws. When the case got to the Supreme Court on an appeal by the Obama administration last year, the Justices granted review but wound up dividing evenly, meaning that the lower court orders against enforcement remained in effect without any final ruling on legality or constitutionality.

Obama had originally adopted a deferred deportation policy for youths – a program that has come to be known by its initials, “DACA.” That was done exactly five years ago Thursday, with the President arguing that the youths had come to the U.S. illegally but only by the action of their parents and had grown up to be responsible young people; the policy did not make them eligible for citizenship.

That specific program had never been blocked by the courts, and more than 800,000 youths have taken advantage of it, made eligible for protection from deportation and to get work permits for renewable periods of two years.

In November 2014, the Obama administration issued broader guidelines, expanding the number of youths who could qualify under “DACA” and allowing them to get work permits and delay of potential deportation for three years at a time.

That directive also announced, for the first time, a similar program of deferred deportation for the parents of children who were citizens or had permanent resident status – known popularly as the “DAPA” program. The goal was to prevent the breakup of families that had been living in the U.S. for several years. That part of the program is the one affecting upwards of 4 million individuals.

Homeland Security Secretary Kelly’s memorandum announcing the nullification of the program for parents, and a return to the two-year system of permits for youths, said that he had considered a number of factors, including the fact that the court orders barring enforcement remained in effect and the fact that, as a result, the parents’ program had never taken effect. He also recited the administration’s new “priorities” that had led to the sharp increase in deportation of undocumented immigrants.

After considering the issue with Attorney General Jeff Sessions, the memorandum said, Kelly was using his own authority to rescind the November 2014 policy guidance.

A press release issued by his department at the same time Thursday night said that the action was taken “because there is no credible path forward to litigate” the Obama policy. That explanation was not attributed to any official, and was not explained.

The Obama administration, when it was still in power, had planned to mount a full defense of the policy when the case actually went to trial in the Brownsville court. The existing bar to enforcement was only a preliminary injunction, not a permanent injunction. Preliminary in nature, the bar to enforcement represented a prediction that the challenging states were likely to win their case ultimately, but it was not a formal decision to that effect.

Texas’s state attorney general, Ken Paxton, who had led the 26-state coalition in opposition to the Obama directive, issued a statement on Friday applauding the switch in policy. “Ultimately,” the statement said, “Texas handed President Obama the biggest court defeat of all when his unilateral immigration policies were blocked by the U.S. Supreme Court last June.”

Legendary journalist Lyle Denniston is Constitution Daily’s Supreme Court correspondent. Denniston has written for us as a contributor since June 2011 and has covered the Supreme Court since 1958. His work also appears on, where this story first appeared. (Photo credit: Navy Petty Officer 2nd Class Dominique A. Pineiro, U.S. Department of Defense)

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