Sessions: DACA an 'Unconstitutional Exercise of Authority' by Executive Branch

September 5, 2017

Attorney General Jeff Sessions announced Tuesday that the Deferred Action for Childhood Arrivals (DACA) immigration amnesty program will be "wound down" and rescinded over the next six months, providing Congress time to take action "should they so choose."

In an official statement at the Department of Justice, Sessions praised President Donald Trump for ushering in a immigration system based on "constitutional order" and  "the rule of law." Sessions specifically framed the administration's decision in terms of ensuring the just administration of the law, in contrast to Barack Obama's so-described executive overreach in creating DACA.

"Such an open-ended circumvention of immigration laws was an unconstitutional exercise of authority by the executive branch," Sessions said about Obama's executive action.

"Simply put, if we are to further our goal of strengthening the constitutional order and the rule of law in America, the Department of Justice cannot defend this overreach," Sessions added.

Sessions discussed further problems with the program, linking it to an increase in minors who came over the border during Obama's second term, and to shrinking job prospects for native-born Americans.

"The effect of this unilateral executive amnesty, among other things, contributed to a surge of minors at the southern border that yielded terrible humanitarian consequences," Sessions said. "It also denied jobs to hundreds of thousands of Americans by allowing those same illegal aliens jobs."

Trump had promised to end the program during his campaign, although he initially allowed it to continue when he first entered office. Reports indicated that Trump himself sympathized with DACA recipients and was conflicted about ending the program, and many fellow Republicans put pressure on Trump to retain the program.

Sessions announced a "wind down" of the program, which would occur over the next six months. During that time, no so-called dreamers would have their status revoked, but no new aliens could apply for protection.

"As attorney general, it is my duty to ensure that the laws of the United States are enforced and that the constitutional order is upheld," Sessions said. "No greater good for the overall health and well-being of our republic than preserving and strengthening the impartial rule of law."

Sessions said the wind-down process will "enable the Department of Homeland Security to conduct an orderly change and fulfill the desire of this administration to create a time period for Congress to act, should it so choose."

Sessions explained that a lawful change to immigration policy would fall within Congress' purview.

"The policy was implemented unilaterally, to great controversy and legal concern after Congress rejected legislative proposals to extend similar benefits on numerous occasions to this same group of illegal aliens," Sessions said. "In other words, the executive branch, through DACA deliberately sought to achieve what the legislative branch specifically refused to authorize on multiple occasions."

Sessions echoed other officials in concluding that DACA would not stand up to legal scrutiny if states went forward with their lawsuit. Ten states had vowed to sue if Trump did not rescind the executive order, the Washington Post reported. He compared it to the Deferred Action for Parents of Americans (DAPA) program, which was also implemented with the stroke of Obama's pen, but was invalidated in the courts.

"Our collective wisdom is that the policy is vulnerable to the same legal and constitutional challenges the courts recognized with respect to the DAPA program, which was enjoined on a nationwide basis in a decision that was affirmed by the Fifth Circuit Court of Appeals," Sessions said. "The fifth circuit specifically concluded that 'DAPA had not been implemented in a fashion that allows sufficient discretion and that DAPA was foreclosed by Congress' careful plan.'"

"If we were to keep the Obama administration's executive amnesty policy [DACA], the likeliest outcome is it would, too, be enjoined just as was DAPA," he said.

Sessions cited George Washington University law professor Jonathan Turley in defending his legal outlook.

"Turley, in testimony before the House Judiciary Committee, was clear about the enormous constitutional infirmities raised by this action. He said in his testimony, 'In ordering this blanket exception, President Obama was nullifying part of a law that he simply disagreed with. If a president can claim sweeping discretion to suspend key federal laws, the entire legislative process becomes little more than a pretense.'"

Sessions ultimately praised Trump's approach to immigration issues and offered support for the RAISE Act, a plan that could cut legal immigration by half.

"As a candidate, and now in office, President Trump has offered specific ideas and legislative solutions that will protect American workers, increase wages and salaries, defend the national security, ensure the public safety, and increase the general well-being of the American people," Sessions said. "He has worked closely with many members of Congress, including in the introduction of the RAISE Act, which would produce enormous benefits for our country."

"This is how our Democratic process works," he added.