Following President Donald Trump’s announcement that he would reverse the Deferred Action for Childhood Arrivals program (DACA), right-wing media rushed to praise Trump’s actions by stereotyping DACA recipients, or “Dreamers,” as criminals and gang members. They also falsely claimed that the program constitutes a form of “amnesty,” that DACA recipients take jobs from native-born Americans, that the program is unconstitutional, and that President Barack Obama did not take any action to pass comprehensive immigration reform during his tenure.
Trump rescinds the Deferred Action for Childhood Arrivals (DACA) program
NY Times: “Trump Moves to End DACA.” Attorney General Jeff Sessions announced that the Department of Justice would end the Deferred Action for Childhood Arrivals program, or DACA, after a six-month delay, opening up DACA recipients to deportation:
President Trump on Tuesday ordered an end to the Obama-era program that shields young undocumented immigrants from deportation, calling it an “amnesty-first approach” and urging Congress to pass a replacement before he begins phasing out its protections in six months.
As early as March, officials said, some of the 800,000 young adults brought to the United States illegally as children who qualify for the program, Deferred Action for Childhood Arrivals, will become eligible for deportation. The five-year-old policy allows them to remain without fear of immediate removal from the country and gives them the right to work legally.
Mr. Trump and Attorney General Jeff Sessions, who announced the change at the Justice Department, both used the aggrieved language of anti-immigrant activists, arguing that those in the country illegally are lawbreakers who hurt native-born Americans by usurping their jobs and pushing down wages. [The New York Times, 9/5/17]
Breitbart.com used a photo of MS-13 gang members -- in El Salvador -- to accompany an article about DACA recipients in the United States. In a tweet about the supposedly “staggering” number of “recipients of the DACA program who are convicted criminals, gang members, or suspects in crimes,” Breitbart used a photo of a reported MS-13 gathering in Central America. Breitbart has used wildly misleading photos like this in the past to accompany its anti-immigrant content, and when this most recent example was condemned, the original tweet was deleted.
[Media Matters, 9/6/17]
Kris Kobach said “many” DACA recipients “committed a crime.” Kris Kobach, a Breitbart columnist and vice chairman of Trump’s Commission on Election Integrity, fearmongered about DACA recipients who were “gang members” and said Dreamers should “go home and get in line.” From the September 5 edition of MSNBC Live with Hallie Jackson:
HALLIE JACKSON (HOST): What do you think the government is going to do, or should do, with all of that information that these Dreamers have provided?
KRIS KOBACH: Well, what the Department of Homeland Security has said is that in any allocation of our resources for deporting people, we're always going to go against those who are committing crimes and those who present -- are gang members first. So, if you've committed a crime, which many DACA recipients had. Over 1,500 --
JACKSON: And the vast majority of Dreamers have not committed crimes.
KOBACH: Right. So, if you've committed a crime or you are a gang member, you better be watching out, because you are a high priority for removal. If you haven't, you're probably a lower priority.
JACKSON: But if you've committed a crime you can't be a DACA recipient. And let's talk about those numbers for a second, because you were on this network last week --
KOBACH: Actually, you can.
JACKSON: No, you can't.
KOBACH: You can be a DACA recipient. Certain --
JACKSON: Not if you've committed a crime. You lose your status.
KOBACH: OK, no, there are several, certain high-level crimes cause you to lose your status. Lower-level crimes do not cause you to lose your status. And if you've been arrested, but not convicted, you can get DACA. And so, a lot of people are gang members that are arrested --
JACKSON: So to echo what my colleague Stephanie Ruhle said to you last week, which was if you've been arrested but not convicted, you haven't committed a crime because you are innocent until proven guilty, but let me talk about the numbers. You mentioned 1,500 people have lost their DACA status, essentially, which is correct. Which according to the U.S. government.
KOBACH: It's not because they went to trial -- wait, wait, wait. It's not because they went to trial and were found innocent. It's because they never were prosecuted because counties don't have the resources to prosecute every assault, every --
JACKSON: What figures do you have to back that up? Is that anecdotal?
KOBACH: I have a testimony from [Immigration and Customs Enforcement (ICE)] agents in federal district court about assault by DACA gang members, and they were still given the benefits of the program because they weren't prosecuted.
JACKSON: But if we're going to talk about, stop. Let me just stop you for one second, Secretary, because I think this is an important conversation to have and to look at the facts when we have this conversation.
KOBACH: Let's agree on this. Dreamers represent a cross section of the illegal alien population. So, you do have some criminals. You also have some people who are doing very well and are scholars, what have you. Those individuals have come into the country illegally and at this point the question is, OK, you no longer have that illegal, that status that President Obama gave you and he had no authority to give you. So, you're back into your illegal status. I would suggest, go home and get in line, come into the United States legally, then get a green card, then become a citizen. Do it the right way like so many hundreds of thousands of your countrymen are trying to do. What's wrong with that? What's wrong with following the law? [Media Matters, 9/5/17]
The Daily Caller: It’s “false” that DACA recipients are “young people who pose no threat.” A Daily Caller report “fact checked” former President Barack Obama’s Facebook post criticizing Trump’s decision to reverse DACA, saying that “many DACA recipients are at or above the age of 25 and 1,500 have lost their deferred action due to a criminal conviction and/or gang affiliation.” From the September 5 report (emphasis original):
In the wake of President Donald Trump’s decision to rescind Deferred Action for Childhood Arrivals (DACA), former President Barack Obama published a statement on Facebook Tuesday that claimed DACA recipients were a “group of young people” that “pose no threat.”
According to information from the Department of Homeland Security (DHS), many DACA recipients are at or above the age of 25 and 1,500 have lost their deferred action due to a criminal conviction and/or gang affiliation.
In his Facebook post, Obama argued that “Whatever concerns or complaints Americans may have about immigration in general, we shouldn’t threaten the future of this group of young people who are here through no fault of their own, who pose no threat, who are not taking away anything from the rest of us.”
The claim that all DACA recipients are young people who pose no threat is false. [The Daily Caller, 9/5/17]
FACT: People with felonies cannot enter the DACA program, and recipients commit crimes at a much lower rate than native-born Americans
The Nation: In order to be eligible for DACA, a person must “never have been convicted of a felony or more than three misdemeanors.” The Nation debunked the right-wing claim that many DACA recipients are criminals and gang members, noting that people cannot enter the program if they have “been convicted of a felony or more than three misdemeanors.” From the June 16 piece:
In February, Trump told reporters, “DACA is a very, very difficult subject, for me. Because you have these incredible kids, in many cases, not in all cases. Some of the cases they’re having DACA and they’re gang members and they’re drug dealers too. But you have these absolutely incredible kids.… It’s a very tough subject. We’re going to deal with DACA with a lot of heart.”
In order to be eligible for DACA, young people have to have entered the United States before age 16 and still been under the age of 31 as of June 15, 2012, the day that President Obama announced the creation of the program. That young person also must have graduated high school and—in direct conflict with Trump’s claims—never have been convicted of a felony or more than three misdemeanors. DACA-eligible young people must meet a host of other criteria: The must clear background checks, hand over their and their family’s personal information to the federal government, and pay hefty fees. It’s estimated that almost 800,000 young people have been able to win DACA, which offers protection from deportation and work authorization for two-year stints, which are renewable. As of today, DACA-eligible young people may continue to apply for and renew their participation in the program. Importantly, DACA does not in and of itself change a person’s immigration status. Should Trump decide to rescind DACA as well someday, the nearly 1 million young people who’ve been able to work, go to school, and move freely for the last five years would become, once again, as vulnerable to deportation as the rest of the nation’s estimated 11 million undocumented immigrants. [The Nation, 6/16/17]
CityLab: DACA recipients may be wrongly included in gang databases which ICE has used to “detain and deport undocumented immigrants.” CityLab reported that many gang databases are often “rife with errors” but have nonetheless been used as a pretext to round up undocumented immigrants who may have been wrongly included in the list of gang members, leading to a number of wrongful detentions. From the February 17 piece:
Different municipal police departments have different methods of determining who is a gang member. One of the most well-known—and problematic—are the gang databases maintained by many states and by [Immigration and Customs Enforcement (ICE)] itself. Perhaps the most notorious is California’s CalGang, which contains the names and information of 150,000 suspected members and associates. The database, along with gang injunctions (or court orders that restrict the movement and behavior of alleged gang members), form the cornerstone of California’s fight against street gangs, particularly in Los Angeles.
But a report by the California state auditor in 2016 found that CalGang is rife with errors, unfounded entries, and hundreds of names that should have been purged years ago. The Los Angeles Times reports that 42 people in the database were found to be younger than 1 year old at the time they were entered; of those, 28 were added for “admitting to being gang members.”
This error-riddled database is the most comprehensive information available in the state about who might be a gang member—besides, of course, the individual judgments of officers in their everyday policing. In Los Angeles, gang injunctions have become a large part of that formula: Police might see someone walking down the street or stop them for something unrelated, deduce that this person is gang-affiliated in some way, and slap them with an injunction that determines what they can wear and where they can gather.
ICE can sometimes be involved in that process, partnering with local police to detain and deport suspected gang members. The Intercept has reported about the way that gang injunctions, which have been criticized for violating civil liberties by the ACLU, have been used to detain and deport undocumented immigrants. This piece tells the story of an anonymous immigrant (called Carlos in the story) who was placed under a gang injunction in Los Angeles based on a tattoo of an “M” and “S” on his arm. Carlos said that he got those tattoos as a young adolescent in Guatemala City, when he was, he admitted, a member of Mara Salvatrucha, an international gang with large membership in Los Angeles. But Carlos maintained he had never been active in the gang while living in this country. Even so, he was arrested several times over nearly a decade for violating his gang injunction; eventually, LAPD agents facilitated a run-in with ICE that led to his detainment. [CityLab, 2/17/17]
Immigrant Legal Resource Center: DHS uses “overly broad” criteria to allege gang affiliation, which is enough to deny a person DACA status. The non-profit Immigrant Legal Resource Center (ILRC) outlined how many of the criteria used to place individuals in gang databases are “overly broad,” which often leads law enforcement to “mistakenly label individuals living in neighborhoods where gang members reside as gang members or associates, even if they are not in a gang and have never been convicted of a crime.” The document noted that “alleged gang membership is usually a nearly automatic bar to demonstrating eligibility for DACA,” and DACA recipients accused of having gang affiliations are likely to be denied the benefits when seeking renewal, adding that allegations “put the applicant at serious risk of referral to ICE for removal.” ILRC also explained that “participation in gang-related activities was viewed as a priority for deportation” under the Obama administration, and under the Trump administration, “‘gang bangers’ have been an oft-referenced priority, and even a DACA recipient was arrested following allegations of gang involvement.” [Immigrant Legal Resource Center, April 2017]
ThinkProgress: “Roughly 0.3 percent of DACA recipients” have been “involved in criminal behavior.” ThinkProgress added important context in response to Breitbart’s claim that “2,139 DACA recipients have had their protected status revoked because of alleged criminal activities over five years,” explaining that with approximately 800,000 DACA recipients, that means “the percentage of DACA recipients involved in criminal behavior ends up being roughly 0.3 percent, which is extremely low in comparison to the national rate of people with felony convictions (over 8.5 percent) or people who are arrested by age 23 (roughly 30 percent).” [ThinkProgress, 9/6/17]
Breitbart columnist calls DACA a “massive amnesty program.” In a list titled “14 Things the MSM won’t tell you about DACA,” Breitbart columnist John Nolte offered numerous right-wing media lies about DACA, including calling it a “massive amnesty program.” From the September 5 piece (emphasis original):
Then there is illegal immigration, which, like abortion, the MSM treats as its own personal sacrament. Flooding America, primarily Red States, with illegal Democrats who also serve the interests of a Big Business Complex desperate to keep wages low and unions non-existent, there is nothing our corrupt media will not do to keep that illegal flood flooding.
And so, as President Trump prepares to keep one of his biggest promises and end President Barry’s un-constitutional Deferred Action for Childhood Arrivals (DACA) amnesty program, all we are seeing from our establishment media is the usual-usual propaganda: flat-out lies, half truths, the ignoring of vital pieces of information and points of view, and most of all, emotional blackmail.
DACA Is a Massive Amnesty Program
Although the DREAMers are in the country illegally, DACA allows some 800,000 to stay in the country legally without any kind of penalty. Qualified DREAMers are not only given a two-year deferment from deportation, they are eligible for a work permit, which means they can legally take a job in America. [Breitbart, 9/5/17]
Daily Caller columnist claimed that “DACA conferred amnesty and federal benefits under the false pretense of ‘Prosecutorial Discretion.’” Dale Wilcox dubiously claimed in a column for The Daily Caller that the “exercise of ‘prosecutorial discretion’ does not permit any DHS employee or officer to grant unlawfully present aliens amnesty and work-permit benefits in the manner attempted by the DACA Directive.” Wilcox is the executive director of the Immigration Reform Law Institute (IRLI), the legal arm of the Federation for American Immigration Reform (FAIR), which the Southern Poverty Law Center has designated a hate group. [The Daily Caller, 9/5/17; Southern Poverty Law Center, accessed 9/6/17]
Former Homeland Security secretary: “Contrary to the sometimes overheated political rhetoric, the program is not the same as amnesty.” In a New York Times opinion piece, former Homeland Security Secretary Janet Napolitano wrote that DACA “is not the same as amnesty,” explaining that “each case is assessed on its own merits to ensure the applicant meets the criteria” and that it “does not grant categorical relief to an entire group.” From the November 30 piece:
For this population, we developed DACA. Under this program, qualifying individuals apply for what is known as “deferred action,” which provides recipients security against removal and the ability to work lawfully for two years, subject to renewal.
Contrary to the sometimes overheated political rhetoric, the program is not the same as amnesty. Each case is assessed on its own merits to ensure the applicant meets the criteria and poses no security threat. This is similar, but not identical, to how a prosecutor decides to charge a case. The program does not grant categorical relief to an entire group. [The New York Times, 11/30/16]
Wash. Post's Glenn Kessler: “Under no circumstances could Obama's action be considered 'amnesty.'” In a November 3, 2014, post on The Washington Post's Fact Checker blog, Glenn Kessler debunked the right-wing claim that Obama intended to “give amnesty” to undocumented immigrants, explaining that “under no circumstances could Obama’s action be considered ‘amnesty’" because “immigrants in theory would still face legal risk because an executive order can be changed by Obama’s successor”:
At this point no one really knows the exact impact. But the odds are the number will be much less than 11 million — and under no circumstances could Obama’s action be considered “amnesty.” Immigrants in theory would still face legal risk because an executive order can be changed by Obama’s successor.
As we have noted before, “amnesty” is a loaded phrase when used in the context of illegal immigration. The dictionary definition is: “The act of an authority (as a government) by which pardon is granted to a large group of individuals.”
The Fact Checker does not take a position on the bill -- or on someone's belief that any path to citizenship is, in effect, “amnesty.”
But the Border Security, Economic Opportunity, and Immigration Modernization Act, which was approved in the Senate in 2013 on a vote of 68 to 32, including the support of 14 Republicans, did not contain anything as sweeping as that dictionary definition of amnesty.
If the bill had become law, undocumented aliens would have had to jump through all sorts of hoops before they could be considered for legal permanent residence, including registering with the government, having a steady job, paying a fine, paying back taxes, passing background checks, learning English -- and then getting in line behind immigrants who had entered the country legally. It would have taken at least 13 years before citizenship could be obtained.
One America News Network host blamed DACA recipients for unemployment: “What do you say to the American citizens who can't find work because a noncitizen has taken a job they would've had?” One America News Network (OANN) host Liz Wheeler argued in favor of Trump’s policy rescinding the DACA program, saying it would help American citizens because DACA recipients took hundreds of thousands of jobs. From the September 4 edition of One America News Network’s The Tipping Point:
LIZ WHEELER (HOST): I do think we can’t forget about how many jobs, how many job permits Dreamers occupy right now. I think the number is 790,000 if I’m not mistaken -- I didn’t write down the number in front of me. But 790,000 jobs that these illegal immigrants who have gotten a sort of legal status through this arguably unconstitutional, unilateral order from President Obama. I mean, the other difficult part of this, the part that I feel sympathetic to as well is the number of American citizens who are unemployed right now. When you have that many people unemployed who are citizens and you have 790,000 Dreamers taking up jobs, I mean, what do you say? What do you say to the American citizens who can't find work because a noncitizen has taken a job that they would've had? [One American News Network, The Tipping Point, 9/4/17]
Mark Krikorian: “The DACAs, who have work permits, are working in jobs that Americans would be doing.” On CNN, Mark Krikorian, the executive director of the anti-immigrant think tank Center for Immigration Studies (which SPLC has deemed a hate group), claimed that DACA recipients are “in jobs that Americans would be doing,” adding, “They’re not picking tomatoes.” From the September 5 edition of CNN Newsroom with Brooke Baldwin.
BROOKE BALDWIN (HOST): Mark, here's my question to you, because when we were all watching the [attorney general] earlier today, Jeff Sessions, he claimed that DACA quote “denied hundreds of thousands of Americans jobs by allowing those same illegal aliens to take those jobs.” Fact? Do you have research supporting that?
MARK KRIKORIAN: Well, I mean, it's just -- they're in jobs that Americans would be doing. They're not picking tomatoes. For the most part, the DACAs, who have work permits, are working in jobs that Americans would be doing.
BALDWIN: Rana, how do you see it?
RANA FOROOHAR: I think it's really important to step back and look at the big picture here, and I want to give you just a couple of facts. Forty percent of the largest companies in America were started by immigrants or children of immigrants. Immigrants have a much higher rate of entrepreneurship in their communities all over the country. These are people that we should be dying to get in this country. One of the reasons that America has historically had a higher growth rate than Europe, for example, is that we have been, traditionally, open to immigrants. I have to come clean and say my father is an immigrant that came to this country, started a business, employed many people. It is amazing to me how quickly the business community has come out, just made blanket statements saying we have to do this, we have to support these people. You see the U.S. Chamber [of Commerce], the Business Roundtable, executives like [Facebook founder] Mark Zuckerberg and [JP Morgan Chase head] Jamie Dimon saying, “We need these people.”
BALDWIN: Tim Cook.
FOROOHAR: Tim Cook, exactly, “We need these people.” I think that that's very, very telling.
BALDWIN: Mark, what's your response?
KRIKORIAN: That's nonsense. I'm sorry. The idea that big business wants more people to loosen the labor market and keep its labor costs down is hardly an argument for more immigration. Of course the Chamber of Commerce agrees with Big Labor and with Sen. [Dick] Durbin [(D-IL)] and with Sen. Graham. We've seen this movie over and over again where all the important institutions of our society, left and right, are pushing, whether it was under President Bush or President Obama, for a both -- an amnesty for all the illegal immigrants who are here and for massive increases in future immigration. Immigration really is not a right-left issue; it's an up-down issue. And what we've seen is all the important institutions of our society pushing for something that ordinary folks are really quite skeptical about. [CNN, CNN Newsroom with Brooke Baldwin, 9/5/17; Southern Poverty Law Center, 3/23/17]
Chicago Tribune: Immigrants take jobs that need to be filled and are “more likely than native-born Americans to start companies, which leads to greater job creation.” The Chicago Tribune fact-checked the Trump administration’s claims about DACA, writing that “few economists or business leaders subscribe to the administration's view” that DACA recipients take jobs away from native-born Americans and pointed out that the unemployment rate has continued to fall even as more DACA recipients became eligible to work in the United States. The article explained that the country’s population is aging, which is negatively affecting the economy, but “immigrants help offset that trend” by taking jobs that desperately need to be filled. The Tribune also pointed out that “immigrants are also more likely than native-born Americans to start companies, which leads to greater job creation.” From the September 5 article (emphasis orgininal):
[Attorney General Jeff] Sessions: DACA “denied jobs to hundreds of thousands of Americans by allowing those same jobs to go to illegal aliens.”
White House spokeswoman Sarah Huckabee Sanders: “There are over 4 million unemployed Americans in the same age group as those that are DACA recipients; that over 950,000 of those are African-Americans in the same age group; over 870,000 unemployed Hispanics in the same age group. Those are large groups of people that are unemployed that could possibly have those jobs.”
The facts: Few economists or business leaders subscribe to the administration's view. The unemployment rate is near a 16-year low, and U.S. companies are seeking to fill 6.2 million jobs, the most on records dating from 2001. Many companies are practically begging for more workers. Some analysts argue that automation in factories and warehouses is picking up in part because of a shortage of available employees.
For the economy to grow, it needs both more workers and to make those workers more efficient through investments in machinery and technology. The U.S. population is aging, more people are retiring, and that has restrained the economy's growth in the 9-year recovery from the Great Recession. Immigrants help offset that trend.
Immigrants are also more likely than native-born Americans to start companies, which leads to greater job creation.
The unemployment rate for African-Americans fell in June to nearly the lowest level on records dating back to 1976. It has since moved higher, but it is low by historical standards. Even in a healthy economy, some Americans will be unemployed as they switch jobs or start looking for work after completing their educations. [Chicago Tribune, 9/5/17]
CNN’s Andrew Kaczynski reported that Trump in 2012 rejected the idea that undocumented immigrants were taking Americans’ jobs. The Hill reported on CNN Senior Editor Andrew Kaczcynski’s tweet pointing out that in 2012, Trump told Fox & Friends hosts that “a lot of the jobs that [immigrants] have, a lot of other people don’t want.” From the September 5 report:
In 2012, Trump rejected the idea that immigrants with work permits were taking jobs away from American citizens, CNN's Andrew Kaczynski noted.
“A lot of the jobs that these people have, a lot of other people don't want,” Trump said.
“We have to show some compassion,” Trump said. “We can't just throw everybody out.”
Vox: “Immigrants don’t take jobs from Americans; they let Americans take higher-skill jobs.” Vox called Sessions’ claim that DACA recipients take jobs away from Americans “almost certainly false,” explaining that “economic evidence is very clear” that immigrants complement the native-born labor force and do not replace native-born American workers. From the September 5 article:
“It denied jobs to hundreds of thousands of Americans by allowing those same illegal aliens to take those jobs.”
This is almost certainly false. The economic evidence is very clear that immigration is a huge boon for Americans as a whole. In part that’s because of complementarity: Immigrants don’t take jobs from Americans; they let Americans take higher-skill jobs (ones requiring English language fluency, for instance) and complement their labor. America’s past experience confirms this. When the US ended a guest worker program that let Mexican laborers work on US farms in the early 1960s, wages for US farm workers didn’t rise at all, nor did more Americans get jobs. Companies simply bought more machines to make up for the lost workers. [Vox, 9/5/17]
Hartford Courant: “Immigrants make up 21 percent of all entrepreneurs in [Connecticut], although they're only 13.7 percent of the state's population.” The Hartford Courant’s editorial board explained that immigrants make positive contributions to the economy in the form of creating new jobs and paying taxes. The editorial explained that immigrants “start more businesses than the American public does as a whole,” and that they pay taxes. The editorial board highlighted a study from the Center for American Progress that found that “at least 72 percent of the top 25 Fortune 500 companies employ DACA recipients.” [Hartford Courant, 9/5/17]
Fox & Friends claimed DACA is unconstitutional. The hosts of Fox & Friends parroted false claims from some Republican governors and President Donald Trump that DACA is unconstitutional while discussing reports that Trump is planning to end it. From the September 5 edition of Fox News’ Fox & Friends:
BRIAN KILMEADE (CO-HOST): At 11 o'clock today, not the president of the United States, but the attorney general, Jeff Sessions, will have an announcement on the future of the Dreamers. Those kids who came here because their parents brought them here at a very young age, not really their decision, and whether they have a future in the U.S. or they're going to have to leave. The president, through an executive action, President Obama, said you can stay, but now there's an expiration date on that because 10 to 12 Republican governors have sued the administration, saying, I want an answer. I want to end this DREAM Act because it's unconstitutional. So the president has until September 5. At 11 o'clock today, he's going to make his announcement, and it's very creative.
ABBY HUNTSMAN (CO-HOST): Yeah, and it sounds like he's going to punt it off to Congress, Steve, to extend it for six months.
KILMEADE: Where it belonged to begin with, right?
HUNTSMAN: Where it did -- and that's what he's saying. He's saying the executive order originally by former President Obama, it was unconstitutional, and that's why we are doing away with DACA.
STEVE DOOCY (CO-HOST): It was not an executive order by President Obama. The [Department of Homeland Security (DHS)] simply changed the rules. So they did not go to Congress, they did not write it out on paper. They just said -- he called up the DHS secretary and said, “Hey, let's make some changes.” Reportedly, President Obama, who did just that, is going to speak out if the president does something, and obviously they're going to do it today because those various states were going to sue the federal government today and it was unclear whether or not Jeff Sessions, the attorney general, would then have to defend the Dreamer status. And instead, he's going to turn around and say, “You know what? We're not going to defend it because we're going to get rid of it.” [Fox News, Fox & Friends, 9/5/17]
Frequent CNN Guest Ken Cuccinelli on DACA: “This is illegal and unconstitutional [and] should’ve just been ended immediately.” Former Virginia Attorney General Ken Cuccinelli said that DACA “should've just been ended immediately,” claiming that Obama “knowingly violated ... the Constitution with this program.” From the September 5 edition of CNN’s CNN Newsroom with Brooke Baldwin:
KEN CUCCINELLI: So under the Constitution, what should have happened in acknowledgment that this is illegal and unconstitutional is it should’ve just been ended immediately, period. That’s the strict rule of law position. So accomodating the kind of feelings that the president has expressed results in this sort of two-year phaseout. It’s actually almost, I guess, a two-and-a-half-year phaseout because in the next six months some of these folks can reapply to extend two more years under the White House’s proposed phaseout. And that does put this squarely in the hands of Congress and, as was noted, I think, by David, that this White House has made it clear that a DACA-only solution isn’t going to cut it. You need to go beyond just this one problem. And let’s be really clear about this problem. President Trump didn’t create a problem today. Barack Obama, when he was president, created a problem when he violated -- knowingly violated -- the Constitution with this program, but because it’s young people it tugs at our heartstrings and I understand that. It certainly does. Maybe that will get Congress to act. [CNN, CNN Newsroom with Brooke Baldwin, 9/5/17]
Right-wing troll Jack Posobiec: “Obama threw the constitution out the window and ruled by decree Trump is restoring law and order #DACA.”
Fox’s John Roberts: Some say “that the president really had no choice here, that it really was executive overreach.” Fox & Friends host Brian Kilmeade (who was guest-hosting The Fox News Specialists) and Fox News correspondent John Roberts defended Trump’s decision to end DACA, with Kilmeade falsely commenting that Trump “didn’t kill the program. He told Congress to make a decision” on whether to continue it. Roberts agreed, responding that “some members of Congress who support DACA say that the president really had no choice here, that it really was executive overreach.” From the September 5 edition of Fox News’ The Fox News Specialists:
BRIAN KILMEADE (GUEST HOST): Hey John, it was hard to not see [Sens.] Dick Durbin [(D-IL)] and Lindsey Graham [(R-SC)] together, both critics at different times of President Trump, say, “Hey, now we got to work together to get something done. Now it's on us to do this.” Constitutionally, we know that Sen. Lindsey Graham is a lawyer, so it's really on Congress.
These protests, and this outrage, and these statements are really missing the point. He didn't kill the program. He told Congress to make a decision.
JOHN ROBERTS: Yeah, and a lot of people say -- and some members of Congress who support DACA say -- that the president really had no choice here, that it really was executive overreach. [Fox News, Fox & Friends, 9/5/17]
ACLU: “Congress has given the executive branch discretion over ‘the administration and enforcement’ of the immigration laws.” American Civil Liberties Union (ACLU) staff attorney Michael Tan explained that “a decision to abandon the DACA program would be a political decision — not a legal one,” noting that “the U.S. government has repeatedly — and successfully — defended DACA against constitutional challenges.” Tan also commented that “programs like DACA make common sense” given that “the government has limited resources and needs to pick and choose the people it goes after.” From the August 15 piece:
To be clear, a decision to abandon the DACA program would be a political decision — not a legal one. In fact, the U.S. government has repeatedly — and successfully — defended DACA against constitutional challenges. Indeed, every legal challenge to the DACA program has failed.
A new open letter to the president by 105 law professors makes clear that the DACA program is lawful and constitutional. As the letter explains, DACA is a form of temporary protection from deportation known as “deferred action.” Deferred action is one way in which the executive branch historically has exercised discretion over whom should and shouldn’t be deported from the United States. DACA specifically grants people who came to the United States as children, pass a criminal background check, and meet educational and other criteria permission to live and work in the country on a two-year, renewable basis.
Programs like DACA make common sense. The government has limited resources and needs to pick and choose the people it goes after. And that’s especially true when it comes to a penalty as severe as deportation — that is, banishment from your home or what the Supreme Court has called the loss of “all that makes life worth living.”
The ultimate legal authority for DACA lies in the U.S. Constitution. Article II, Section Three of the Constitution states that the president “shall take Care that the Laws be faithfully executed.” Carrying out our immigration laws involves deciding who should be targeted for deportation and who should be allowed to stay. Similarly, Congress has given the executive branch discretion over “the administration and enforcement” of the immigration laws. And the Supreme Court has recognized that “[a] principal feature of the removal system is the broad discretion exercised by immigration officials . . . . Federal officials, as an initial matter, must decide whether it makes sense to pursue [someone’s] removal at all . . . .” [ACLU, 8/15/17]
American Immigration Council: “It is clear that the President and DHS have legal authority … to set priorities and use limited resources to target serious threats to public safety.” American Immigration Council, an immigration advocacy group, released a fact sheet about United States v. Texas, the Supreme Court case that challenged Obama’s two executive actions on immigration. The information sheet listed the many reasons that demonstrate the constitutionality of DACA, highlighting the “clear” “precedent on prosecutorial discretion in the immigration context” and “historical precedent” for such a decision, among others. The final decision on the case ended in a tie. From the April 11, 2016, report:
Although no one can say for sure which side will win, it is clear that the President and DHS have legal authority to do what every law enforcement agency does—set priorities and use limited resources to target serious threats to public safety. Through expanded DACA and DAPA, immigration enforcement officials can focus their attention on real public safety risks.
Consider the following:
- The Supreme Court precedent on prosecutorial discretion in the immigration context is clear. In the 2012 case Arizona v. United States, Justice Kennedy stated in the majority opinion for the Court that “a principal feature of the removal system is the broad discretion exercised by immigration officials.” Expanded DACA and DAPA fall squarely within this precedent.
- There also is ample historical precedent for executive branch action on immigration matters. Since 1956, every U.S. president since Eisenhower has taken executive action to grant temporary immigration relief to those in need of assistance. In at least 39 instances, presidents have acted to protect families from separation in response to foreign policy crises or in recognition of pending legislation.
- A grant of deferred action does not confer any type of lawful immigration status, enforceable legal rights, or an ability to remain permanently in the United States.
- Work eligibility stems from longstanding, independent legal authority, not from DAPA or expanded DACA. The states’ argument that the government overstepped its bounds by rendering deferred action beneficiaries eligible to work ignores this fact. Beneficiaries of deferred action in other contexts—including but not limited to certain victims of domestic violence under the Violence Against Women Act, victims of human trafficking and certain other crimes who are eligible for “T” and “U” visas, and foreign students affected by Hurricane Katrina—have been eligible for work authorization since the late 1990s. [American Immigration Council, 4/11/16; SCOTUSblog, accessed 9/6/17]
Reason.com: “Obama’s actions were well within the scope of executive authority under the Constitution.” George Mason University law professor Ilya Somin wrote for Reason.com that “because of the enormous scope of federal criminal law, presidents routinely exercise extraordinarily broad discretion in deciding which violations to prosecute.” Somin also noted that “Obama’s decision to defer deportation is in line with those of past presidents,” noting that “past presidents such as Ronald Reagan and George H.W. Bush, have done so as well, including some 1.5 million people in the case of Bush.” From the December 16, 2014, article:
President Obama’s recent order deferring the deportation of up to 5 million undocumented immigrants has led to enormous controversy. Many, especially on the political right, argue that it undermines the rule of law. The president, they contend, is required to enforce federal law as written, not pick and choose which violators to go after and which to exempt based on policy considerations.
In reality, Obama’s actions were well within the scope of executive authority under the Constitution. In a world where authorities can prosecute only a small fraction of lawbreakers, all presidents inevitably make policy choices about which violations of federal law to prosecute and which to ignore. Such choices are inevitably affected by policy preferences. Obama’s decision to defer deportation is in line with those of past presidents. And if any lawbreakers deserve to benefit from prosecutorial discretion, immigrants fleeing Third World poverty and oppression have a particularly strong case. Moreover, at least under the original meaning of the Constitution, the constitutionality of the immigration laws that Obama has chosen not to enforce in some cases, is itself suspect.
In addition, the people covered by Obama’s order are hardly in the clear. The deferral of their deportation may be reversed at any time, either by Obama himself or a successor. Obama was only partially right when he famously claimed that his order allows those it protects to “come out of the shadows.” They can still be forced back into the shadows at any time.
Obama is far from the first president to exempt large numbers of illegal immigrants from deportation. Past presidents such as Ronald Reagan and George H.W. Bush, have done so as well, including some 1.5 million people in the case of Bush. That does not by itself prove that Obama is acting legally; perhaps Reagan and Bush were undermining the rule of law as well. But it does at least provide an important precedent, especially since few in either party claimed that the prior administrations’ actions were illegal at the time they were done. In this field, Congress itself has delegated wide latitude to the president, which makes the exercise of discretion even less problematic than in many other cases where the law is written in a more categorical way. [Reason.com, 12/16/14]
Fox & Friends’ Steve Doocy: “George W. Bush tried to get immigration reform passed. He couldn't do it. Barack Obama chose not to when he controlled both houses of Congress.” Fox host Steve Doocy falsely claimed that Obama “chose not to” get immigration reform passed “when he controlled both houses of Congress.” From the September 6 edition of Fox News’ Fox & Friends:
STEVE DOOCY (CO-HOST): So there you've got the president of the United States, even though he's rescinding it, at the same time he appears to be sympathetic toward the Dreamers. He's talking about how he has a love for them. And now essentially what he is doing is he is doing something that Barack Obama did not do. Remember, back in the -- George W. Bush tried to get immigration reform passed. He couldn't do it. Barack Obama chose not to when he controlled both houses of Congress. And now, there are Democrats who want something done. There are some Republicans who want something done. There are a number of business leaders. They want these people to be allowed to stay in the country. And it's now in Congress' court.
Right, and speaking of the rule of law, the president of the United States cannot make the laws of the land. And that is what got us into this conundrum because Barack Obama, who did not choose to get immigration reform passed during his administration, when he controlled --
PETE HEGSETH (CO-HOST): Yeah, it was such a big priority, Steve. They didn't get it done.
DOOCY: Exactly right. [Fox News, Fox & Friends, 9/6/17]
Right-wing media have repeatedly tried to claim that Obama “didn't do anything" on immigration. The false claim that Obama “didn't do anything” on immigration has become an entrenched right-wing talking point even though it has already been debunked. Fox's Karl Rove and Wall Street Journal columnist Kimberly Strassel have also spread this lie. [Media Matters, 6/21/12]
The Daily Beast: “Obama signaled in April 2009 that he wanted comprehensive immigration reform to be a first-year issue … but it [be]came clear that he'd have no GOP support at all.” The Daily Beast explained that Obama wanted to pass comprehensive immigration reform during his first year as president but moved on to other issues when it became “clear that he'd have no GOP support at all.” From the June 21, 2012, piece:
[Romney’s claim that Obama didn’t try to fix the immigration system, despite his majority in both houses] sounds persuasive if you don't know what actually happened in 2009. Obama signaled in April 2009 that he wanted comprehensive immigration reform to be a first-year issue. So the White House started holding meetings on the issue, but it came clear that he'd have no GOP support at all. Remember that at that time, Al Franken wasn't yet sworn in, so Obama had only 59 votes in the Senate, not the needed 60.
Plus, Obama ran into some opposition in his own party, in both houses. The idea that Obama “was free to pursue any policy he pleased” assumes that when the president says jump, the legislators of his party say how high. That was true of the Bush-era GOP, because they march in a Politburo kind of lockstep for the sake of political power, but it certainly isn't true of Democrats. [The Daily Beast, 6/21/12]
The Guardian: Obama called on Congress to pass “immigration overhaul,” which was met with “staunch opposition” from many House Republicans. In 2013, The Guardian reported that “immigration remains one of Obama's top second term priorities,” but that “the issue has been overshadowed for months, most recently by the 16-day partial government shutdown.” Despite his calls to pass legislation, conservative Republicans “oppose[d] measures that would grant legal status to people already in the country illegally, even with the fines and long waiting period that would be imposed by the Senate measure.” From December 31, 2013, report:
President Obama called on Congress Thursday to finish work on an immigration overhaul by the end of the year, a lofty goal that will be difficult to meet given the staunch opposition of many House Republicans.
While immigration remains one of Obama's top second term priorities, the issue has been overshadowed for months, most recently by the 16-day partial government shutdown. The president's shift to a greater focus on immigration came as the White House was seeking to shift the conversation away from the deeply problematic rollout of Obama's health care law.
During remarks at the White House, Obama insisted that Congress has the necessary time to finish an immigration bill by the end of the year. The Democratic-controlled-Senate passed sweeping legislation this summer that would provide an eventual path to citizenship for some 11 million migrants living here illegally and would tighten border security. But the measure has languished in the Republican-led House.
But most conservative tea party-backed Republicans oppose measures that would grant legal status to people already in the country illegally, even with the fines and long waiting period that would be imposed by the Senate measure. The recent shutdown and debt ceiling fight also fueled deeper resentment toward Obama among those lawmakers, who got virtually nothing out of the deal that was reached to reopen the government and lift the borrowing limit.
In the wake of that messy stretch for Congress, Obama urged lawmakers to see immigration as an opportunity to show the public that government can work.
“Rather than create problems, let's prove to the American people that Washington can actually solve some problems,” Obama said. [The Guardian, 12/31/13]