When a President Writes Immigration Law With a Memo, DACA and DAPA

Imagine a young woman brought to this country at the age of four. She grew up here, pledged allegiance in a classroom, graduated from high school, and works as a nurse's aide. She has never known another country. Now imagine that her entire legal footing rests on a memorandum, a few pages long, signed by a cabinet secretary, which the next cabinet secretary can cancel with another memorandum. If that picture makes you uneasy, it should. It ought to make you uneasy whether you think she should stay, or whether you think the law says she must go.

That is the real story of DACA, and it is a story that both political camps get wrong. The left talks as if the only question is compassion. The right sometimes talks as if the only question is lawbreaking. The deeper question is who gets to make the rule. In the American system, the answer is written in the first sentence of the Constitution's first article: all legislative powers belong to Congress. A President who writes immigration law with a memo is not being too generous or too stingy. He is in the wrong room.

I want to make this case as a conservative who cares about the young people in question and about the Constitution at the same time. The two concerns point to the same answer: pass a law.

The thesis in four sentences

One: Congress, not the President, decides who may become a citizen and who may stay. Two: the President must execute the laws as Congress wrote them, not rewrite them to match his policy. Three: a program built on a memo lasts only as long as the person who signed it, so it fails the very people it is meant to protect. Four: the respectful, durable and constitutional answer is a statute, with terms that the people's representatives debate and vote on.

Let me walk through the evidence.

The text: what the Constitution gives to whom

Article I, Section 8 gives Congress the power "to establish an uniform Rule of Naturalization." That is the constitutional home of immigration policy. Over the years, courts have recognized that the power over who may enter and remain is shared in some respects with the executive, which enforces the laws and conducts foreign affairs, but the lawmaking core belongs to Congress.

Article II, Section 3 says the President "shall take Care that the Laws be faithfully executed." The word is "faithfully." A President can choose how to deploy limited resources. He cannot declare that a category of people the statute treats as removable is to be treated as lawfully working. And Justice Robert Jackson's famous concurrence in the 1952 steel seizure case, Youngstown Sheet & Tube Co. v. Sawyer, reminds us that the President's power is at its lowest ebb when he acts against the will of Congress, express or implied.

The steelman: the best case for the memo

Fairness first. The defenders of DACA have a serious argument, and it deserves a hearing in its strongest form.

Every administration has more people who could be removed than it has the money, detention beds and judges to remove. Choosing priorities is unavoidable, and the Supreme Court has recognized the executive's broad discretion over enforcement decisions. In Reno v. American-Arab Anti-Discrimination Committee (1999), the Court noted that deferred action, a decision to forbear from removal for humanitarian or administrative reasons, had long been a practice of the immigration agency. There are precedents on both sides of the aisle. In 1990, under President George H.W. Bush, the Family Fairness program deferred deportation for certain spouses and children of people legalized by the 1986 law.

The defenders add that the DACA memo did not grant legal status. It deferred enforcement against a narrow, low-priority group. The June 15, 2012 memo, signed by Homeland Security Secretary Janet Napolitano, applied to people who had come to the United States before age sixteen, had been under thirty-one on that date, had lived here continuously since June 15, 2007, were in school or had graduated or served honorably in the military, and had no serious criminal record. It was renewable in two-year periods. And, they say, Congress had been asked repeatedly to act and had not. A President faced with a stalled legislature, in this view, may use the tools he has.

The answer, in numbered points

Here is why that argument runs out of road.

1. Discretion is not the same as a program. Choosing not to remove a particular person in a particular case is discretion. Announcing criteria, accepting applications, granting a benefit to everyone who qualifies, and attaching work authorization to the grant looks like a system of rules, which is what legislation is. The Fifth Circuit drew exactly that line a few years later.

1. Work permits come from statute. The immigration code is detailed about who may work in the United States. A deferral of removal, standing alone, does not make a person lawfully employed. The program relied on a regulation allowing work authorization for people granted deferred action, and the question of how far that regulation can stretch is the heart of the legal fight.

1. "Congress didn't act" is not a power. The Constitution does not say that when Congress fails to pass a bill, the President may. If it did, every stalemate would transfer legislative power to the executive. Conservatives know this principle well, because we invoke it against every administration that tries to govern by pen and phone. It cannot be a principle only when the other side is in office.

1. What one memo gives, another can take. A program built on discretion can be revoked at will. That is exactly what happened later, and it is what keeps the people in the program living with uncertainty. The more humane position is not the memo. It is the statute.

The history of the memo and the lawsuits

Let me lay out the sequence, because the dates matter.

2001 and after. The DREAM Act, authored in 2001 by Senators Dick Durbin and Orrin Hatch, would have given a path to legal status to certain young people brought here as children. It was a bipartisan idea, and it was introduced repeatedly over the following decade. In December 2010 a version failed to get the sixty votes needed to end debate in the Senate.

June 15, 2012. Secretary Napolitano issued the DACA memo, described above.

November 2014. The administration announced an expansion of DACA and a new program, Deferred Action for Parents of Americans and Lawful Permanent Residents, known as DAPA. The Department of Homeland Security memo, signed by Secretary Jeh Johnson, would have extended deferral and work authorization to parents of U.S. citizens and lawful permanent residents who had lived here continuously since January 1, 2010.

February 2015. A federal district judge in Texas, Andrew Hanen, blocked the expansion and DAPA in a lawsuit brought by Texas and other states, Texas v. United States. The judge's reasoning rested on procedure: the administration had adopted a substantive rule without the notice-and-comment process the Administrative Procedure Act requires.

November 2015. The Fifth Circuit upheld the injunction. The panel went further than procedure, finding that DAPA conflicted with the Immigration and Nationality Act.

June 2016. The Supreme Court, with only eight justices after the death of Justice Antonin Scalia, divided four to four in United States v. Texas and affirmed the lower court by an equally divided vote, with no opinion. A tie sets no national precedent, but it left the injunction in place and DAPA dead.

September 2017. The administration announced it would wind down DACA, citing its legal vulnerability, and the rescission was challenged in court.

June 18, 2020. In Department of Homeland Security v. Regents of the University of California, the Supreme Court held, by a five to four vote in an opinion by Chief Justice Roberts, that the rescission was arbitrary and capricious under the Administrative Procedure Act because the agency had not adequately explained itself or considered the reliance interests involved. The Court did not decide whether DACA itself was lawful. It said the process of ending it was flawed.

Afterward. Litigation over DACA's legality continued in the Texas federal courts, where Judge Hanen ruled in July 2021 that the program was unlawful, and the Fifth Circuit largely agreed in 2022 while leaving protections for existing recipients in place for the time being. If you want the current state of play, check the court dockets and the Department of Homeland Security's site. I am not going to guess at it.

Read that sequence from the point of view of a recipient. Their legal footing was created by a memo, expanded by a memo, challenged in court, rescinded by a memo, saved by a procedural ruling, and then questioned again. That is not stability. It is a family living inside a lawsuit.

Living on a two-year clock

It helps to picture what the renewable structure means in a real life, so here is a hypothetical, labelled as one. Suppose a recipient is granted deferral and a work permit for two years and keeps renewing on schedule. Over ten years that is 10 divided by 2, or five renewal cycles. Each cycle is a moment when the program could be paused, narrowed, litigated or ended, and each cycle requires filing, waiting and hoping the paperwork clears before the old permit expires.

Now put that person in the life most of us would want for our own children. Over those ten years she might sign a lease, take a job with a company that wants long-term employees, enroll in a nursing program, or try to buy a car on a loan. Every one of those decisions has a time horizon longer than two years, and every lender, landlord and employer knows it. A status that expires every twenty-four months is a status that makes long-term commitments harder.

None of that tells you what the right policy is. It tells you the memo is a poor instrument for any policy, whether the goal is to welcome these young people or to hold the line on enforcement. If the answer is "stay," then say so in a statute that gives a family something to plan around. If the answer is "go," then the law should say that too and not leave the matter to be decided case by case through the shifting priorities of whoever holds the office.

Why the same principle protects us

A conservative should apply the rule consistently. If a Democratic President cannot create a legalization program by memo, a Republican President cannot create a deportation program by memo that Congress never authorized, or ignore a statute he dislikes. The principle is that the executive carries out the law Congress wrote. That limit is the best protection the people have, and it does not become less true because we like the policy outcome. I make a related case about lawmaking in Congress Should Write the Laws, and Other Radical Ideas From Article I, and the same logic comes up in the discussion of courts and injunctions in One Judge, One Injunction, One Country, and How Federal Courts Block Policy.

A respectful path through Congress

If a statute is the answer, what would a serious conservative bill contain? These are options, not a platform.

• Clear eligibility. An age of arrival cutoff, continuous residence, and a date line that prevents new incentives.
• Conditions. Background checks, no serious criminal record, and requirements such as school completion, steady work, or military service.
• Enforcement first, or alongside. Conservatives have long said that any legalization has to come with real border and workplace enforcement, which is where tools like those described in E-Verify Explained, the Free Federal Check Most Employers Skip come in. The 1986 law taught us what happens when the legalization arrives and the enforcement does not, a story told in Reagan Signed the 1986 Amnesty and Got Only Half of the Bargain.
• A defined end point. Either a path to permanent residence and eventual citizenship through the ordinary system described in Becoming an American Citizen Step by Step, From Green Card to Oath, or a durable status without it. This is the hardest question, and reasonable conservatives disagree.

Then let Congress debate it, amend it and vote on it. The Senate did pass a broad immigration bill in 2013, and the House did not take it up, which shows how hard this is. That difficulty is not a reason to let the executive skip the process. It is the reason the process exists.

If you want to know where your own senators and representative stand, the bills and votes pages are the place to look.

The verdict

This is a case where being principled and being kind point the same direction. The kindest thing you can do for a young person who has lived here since childhood is give her a status that cannot be erased by the next signature. The most conservative thing you can do is insist that the people's representatives, not a memo, make the rule.

If you are on the left, ask why you would trust a program that the next President can end. If you are on the right, ask why you would let a President of your own party claim the same power. Neither side has been consistent, and the people in the middle have paid for it.

The bottom line

• Congress has the power over naturalization (Article I, Section 8), and the President's duty is to execute the laws faithfully (Article II, Section 3). A memo is the wrong tool for a program this large.
• DACA began with the June 15, 2012 memo. DAPA, announced in November 2014, was blocked in Texas v. United States and left dead by a four to four Supreme Court in June 2016.
• In Regents (June 2020), the Court said the 2017 rescission was procedurally flawed. It did not rule on whether DACA is lawful.
• A statute is the only durable answer. It can set conditions and enforcement, and it protects recipients from the next memo.
• Hold your own party to the same rule. Ask your members of Congress for a vote, not a workaround.