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Miriam Valverde
By Miriam Valverde September 11, 2017

What have courts said about the constitutionality of DACA?

New York Attorney General Eric Schneiderman is leading a lawsuit against the Trump administration over its decision to rescind a deferred deportation program, claiming the move is discriminatory and that the program itself has not been ruled unconstitutional.

U.S. Attorney General Jeff Sessions announced Sept. 5 the end for Deferred Action for Childhood Arrivals (DACA), an Obama-era program that protected from deportation immigrants who came to the United States as children and live here illegally.

The lawsuit from Schneiderman and 15 other attorneys general contends the administration’s action discriminates against Mexican immigrants, who account for 78 percent of DACA recipients. Trump since his campaigning days "has flagrantly displayed an anti-Latino, particularly anti-Mexican discriminatory animus," Schneiderman said on MSNBC’s The Rachel Maddow Show.

"This is a massively successful program. There is no good reason to shut it down. There's no legitimate reason to shut it down. No court has held it unconstitutional," Schneiderman said Sept. 6.

We’ve heard lots of competing claims from lawmakers, pundits and others that walk the line between fact and opinion regarding the constitutionality of DACA.

Schneiderman’s claim is clearly stated as a fact. We found that he is right: DACA’s constitutionality has not been determined by courts.

DACA created by 2012 DHS memo

DACA is based on a June 2012 memorandum issued by Janet Napolitano, then-Secretary of the Department of Homeland Security.

Napolitano’s memo outlined prosecutorial discretion so that resources would be used to remove immigrants who met the department’s priorities and protect from deportation young immigrants who met specific criteria.

Napolitano said immigration laws were "not designed to be blindly enforced" without considering individual cases and circumstances. "Nor are they designed to remove productive young people to countries where they may not have lived or even speak the language. Indeed, many of these young people have already contributed to our country in significant ways. Prosecutorial discretion, which is used in so many other areas, is especially justified here," Napolitano wrote.

DACA is a policy, but it is not a law. It also does not grant legal immigration status to the approximately 800,000 people who were approved for the program.

Many have argued that creating DACA through the executive brach, rather than through the legislative process is an overreach of executive power.

Featured Fact-check

No court ruling on constitutionality of DACA

There’s debate among experts on whether DACA is constitutional or not, but there is agreement that a court ruling on the constitutionality of the program has not been issued.

"There has been no court decision holding that DACA itself is unconstitutional," Anil Kalhan, an associate professor of law at Drexel University.

A lawsuit to challenge the 2012 DACA was dismissed for lack of standing, and that decision was upheld by the U.S. Court of Appeals for the Fifth Circuit, Kalhan said. "So there was never any adjudication on the merits," he said.

"To my knowledge, no court has ruled DACA 2012 as unconstitutional and the one to even reach the court was dismissed on jurisdictional grounds," concurred Shoba Sivaprasad Wadhia, a law professor and director of the Center for Immigrants’ Rights Clinic at Pennsylvania State University. Wadhia and more than 100 other immigration law professors and scholars wrote a letter to Trump providing legal analysis on the executive branch’s legal authority to implement DACA.

Other experts from the University of California also told us courts have not stricken down DACA as unconstitutional.

"It's a straightforward fact that no court has declared DACA unconstitutional and that the one appellate court that considered a related program declined to address the issue," said Amy Spitalnick, spokeswoman for Schneiderman.

Texas and 25 other states won a lawsuit against the Obama administration by having a federal district judge block the implementation of an expanded version of the 2012 DACA and of another deportation reprieve program, Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA). An appeals court upheld the ruling, and in 2016 the Supreme Court ruled 4-4 on the case, leaving in place the lower court's ruling.

But when those programs were temporarily enjoined by the district court in Texas, it was not on constitutional grounds, Kalhan said, "but rather based on a conclusion that Obama administration should have instituted the policy using notice and comment rule-making, rather than using the more informal guidance document that it issued."

A final, binding precedent even on that basis was not set either, since it was only a preliminary injunction and the Supreme Court deadlocked, Kalhan said.

"And even then, some aspects of DAPA and the DACA expansion may be different from DACA in relevant ways that bear on legality—it has never been fully established the two programs stand on identical legal footing," Kalhan said.

Our ruling

Schneiderman said, "No court has held (Deferred Action for Childhood Arrivals) unconstitutional."

While there is debate on the constitutionality of DACA, that has not been determined by courts.

We rate Schneiderman’s statement True.

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"No court has held (Deferred Action for Childhood Arrivals) unconstitutional."
in an interview on The Rachel Maddow Show
Wednesday, September 6, 2017

Our Sources

MSNBC, Schneiderman suing Trump over DACA cites 'discriminatory animus', Sept. 6, 2017

PolitiFact, Fact-checking Attorney General Jeff Sessions on the DACA immigration program, Sept. 5, 2017

PolitiFact, Trump-O-Meter update: Terminate Barack Obama's immigration executive orders 'immediately', last updated Sept. 5, 2017

New York Attorney General Eric T. Schneiderman’s website, Press release: A.G. Schneiderman Files Lawsuit To Protect Dreamers And Preserve DACA, Sept. 6, 2017

New York Attorney General Eric T. Schneiderman’s website, Text of DACA lawsuit against Trump administration, Sept. 6, 2017

U.S. Citizenship and Immigration Services, DACA approvals up to March 31, 2017

Rep. Barbara Comstock’s website, Rep. Comstock Statement On DACA, Sept. 5, 2017

Email exchange, Amy Spitalnick, spokeswoman for New York Attorney General Eric T. Schneiderman, Sept. 10, 2017

Department of Homeland Security, Memo from DHS Secretary Janet Napolitano on DACA, June 15, 2012

Email interview, Anil Kalhan, an associate professor of law at Drexel University, Sept. 7, 2017

Email interview, Hiroshi Motomura, immigration scholar and professor at UCLA School of Law, Sept. 7, 2017

Email interview, Kevin R. Johnson, an immigration law expert and dean of the University of California, Davis School of Law, Sept. 7, 2017

Email interview, Shoba Sivaprasad Wadhia, a law professor and director of the Center for Immigrants’ Rights Clinic at Pennsylvania State University, Sept. 7, 2017

Email interview, Michael W. McConnell, professor and Director of the Constitutional Law Center at Stanford Law School, Sept. 7, 2017

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What have courts said about the constitutionality of DACA?

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