Thomas Law Firm Call us today at (678) 264-8348
Atlanta Personal Injury Lawyer Attorney Profile Personal Injury Contact Us
Find out about the benefits of having former insurance defense attorneys on your side Learn about our contingency fees Have you been injured? Get a free case evaluation today

Trends in the Law: The Controversy over DACA

This is an installment in our Trends in the Law Series


On November 12, 2019, the Supreme Court of the United States heard one of the most important cases on its docket this term. In Department of Homeland Security, et al. v. Regents of the University of California, et al., the Trump administration appealed the Ninth Circuit’s decision of November 2018 stating that the administration could not rescind the Deferred Action for Childhood Arrivals program, known as DACA, without providing a sound rationale and justification. The Ninth Circuit held that the Trump administration acted improperly when it rescinded the program by a simple statement articulated by then-Attorney General Jeff Sessions that the program was illegal and unconstitutional.

Furthermore, and most crucially, by stating that the whole DACA program was illegal and unconstitutional, the administration placed the program squarely within the purview of the courts. If the administration had issued a policy memo explaining its rationale for why it was ending DACA, its decision to do so would not be reviewable by the courts since policy is within the discretion of the executive branch. But by claiming that the program was illegal, and that President Obama never had the authority to establish and implement the program in the first place, the Trump administration made the termination of DACA reviewable by the judiciary. No one is arguing that the Trump administration lacks the authority to end DACA; what is in dispute is the way in which the administration attempted to do so.


Almost a year to the day of that opinion being issued, the Trump administration argued before SCOTUS that the Ninth Circuit was wrong, and that it had provided enough of a justification for rescinding DACA. The administration is hoping that U.S. v. Texas (2016), in which SCOTUS split 4-4 shortly after Justice Scalia’s death, will be a positive precedent of sorts. That case involved President Obama’s attempt to expand DACA to include parents—Deferred Action for Parents of Americans of Licensed Permanent Residents, or DAPA. Because the Supreme Court was split, the lower court opinion stood, which precluded DAPA from being implemented.

Multiple briefs have been filed in the present case, on behalf of a wide variety of interests. Conservative organizations and individuals, and 12 Republican states have come together to file a total of 6 briefs in favor of DACA being rescinded. Higher education associations, health professionals, 143 corporations and business associations, and Tim Cook the CEO of Apple, filed a total of 35 briefs in favor of DACA being allowed to continue. Cook’s brief states that Apple employs 443 so-called “Dreamers” who come from 25 different countries and 4 continents, and that this diversity is what enables Apple to make the products it does. The brief filed by the business association and companies includes research by the CATO Institute which estimates that companies will face app. 6.3 billion in costs to replace the program’s recipients if they can even find new employees to fill the empty positions.


The Deferred Action for Childhood Arrivals program was created by President Obama in 2012 by Executive Order. As Janet Napolitano, then-Secretary of the Department of Homeland Security has described the program, it was an exercise of executive discretion about whom to prioritize and whom not to when it came to deporting undocumented immigrants. DACA gives work permits to immigrants and allows them to stay in the country as long as:

1. they arrived when they were 15 or younger;

2. they were 30 or younger when the program began in 2012;

3. they have not been convicted of any crimes as of the time they apply for the

program; and

4. they have either graduated from a U.S. high school, are enrolled in school, or

have served in the armed forces.

What started out as an enforcement policy rationale and an exercise of prosecutorial discretion has turned into a highly successful program. DACA recipients have become teachers, health care professionals, doctors, and lawyers; in fact, one of the lawyers at the counsel table for the SCOTUS arguments is a DACA recipient. The National Immigration Law Center estimates that there are 700,000 DACA recipients at present; they arrived in the U.S. on average at the age of 7 years old; they have lived in this country for app. 20 years; and they are the parents of app. 256,000 children who are U.S. citizens.

Janet Napolitano is now the president of the University of California system, and the lead plaintiff in the lawsuit to uphold DACA. Ted Olson, who served as U.S. Solicitor General under George W. Bush, argued for upholding DACA, as well as the California Solicitor General Michael Mongan. Noel Francisco, the current U.S. Solicitor General, argued on behalf of the Trump administration, to “wind down” DACA.

No one with a felony conviction or even an extensive misdemeanor record is eligible for DACA or can remain in the program. Statistics show that 850 DACA recipients had their status terminated due to criminal or gang activity in fiscal year 2017.


It can be argued that the fate of the DACA program and its app. 700,000 Dreamers should not be in the hands of SCOTUS at all. Congress could and should rescue these worthy recipients by making the program law. The U.S. House of Representatives passed a bill in June that would do just that, but it sits in the Senate, stalled. (Two prior attempts at compromise involving DACA and border security/wall funding failed spectacularly.) An overwhelming majority of Americans, both Republican and Democratic, support saving DACA and allowing the Dreamers to remain in the country. Keeping hard-working, tax-paying, talented people in this country is an American issue, not a partisan one, and should be addressed in the legislative branch, by our elected representatives.


If you or someone you know has an issue with regard to your legal status, contact Dave Thomas with The Thomas Law Firm for a free evaluation of your legal rights.

AV Peer Review Rated View our Avvo profile Find us on Member of the Georgia Trial Lawyers Association
Attorney Web Design

The information on this website is for general information purposes only. Nothing on this site should be taken as legal advice for any individual case or situation. This information is not intended to create,and receipt or viewing does not constitute, an attorney-client relationship.

Thomas Law Firm
Located at 945 East Paces Ferry Road, Resurgens Plaza, GA 30326.

Phone: (678) 264-8348.
Website: .