There is a feeling of betrayal that currently besets many immigrant communities across the country. Estimates vary, but around 11 million people currently live in the United States without authorization.ⁱ Many of these people have lived here for most of their lives; they have attended American public schools; they have been raised on American Idol and the Kardashians; they have gorged themselves on McDonald’s and pizza; but they and their parents had been afraid to open bank accounts, to call police, or visit doctors.
And then on June 5, 2012, President Obama announced a program that became known as Deferred Action for Childhood Arrivals or DACA.ⁱⁱ Under this program, undocumented immigrants who entered the U.S. unlawfully when they were children and who met other eligibility criteria could apply to the Department of Homeland Security for deferred action. People granted deferred action would remain subject to removal in the future but would have governmental permission to remain in the U.S. for a renewable two-year period. Anyone granted deferred action under DACA could apply for work authorization, a right unavailable to those who had entered illegally.ⁱⁱⁱ Some posited that DACA would apply to as many as one million immigrants.^iv

For an undocumented immigrant to take the risk to enter a government building and admit that he or she entered the U.S. illegally required a leap of faith. Unqualified applicants risked deportation. Even qualifying meant being placed on a list of people who would have to renew their ability to remain in the country every two years. But despite statements from the Obama administration that it was not a path toward citizenship, DACA seemed at least, like a step toward legitimacy- toward opening bank accounts instead of using check cashing places with their exorbitant fees; toward being able to apply for college and tuition benefits; toward openly visiting doctors and hospitals. More than 800,000 people took that risk and it appeared that their faith had been vindicated because in the first four years DACA was in place, the Department of Homeland Security granted 94% of the more than 800,000 initial applications for deferred action it received.^v

Then on November 20, 2014, the Obama administration announced a program that became known as Deferred Action for Parents of Americans, or DAPA.^vi DAPA allowed deferred action of undocumented immigrants whose children were born in the United States. Those who met six eligibility criteria could apply for deferred action and work eligibility status similar to that granted under DACA.^vii Although the DACA and DAPA memos specified that only Congress could create new immigration statuses and deferred action was revocable at any time,^viii more people came forward hoping that they now had a path to citizenship.

However the new policies were hotly contested. By 2015, Twenty-Six different states had challenged DAPA in federal court on Constitutional and administrative grounds.^ix Texas argued that DAPA created a financial burden because it increased the number of its lawful residents who would become eligible for benefits like drivers’ licenses.^x The Supreme Court granted Cert., largely ignored the drivers’ license issue, and sua sponte asked the parties to argue whether DAPA violated the Take Care Clause of the Constitution.^xi Under the Take Care Clause the Federal Executive is charged with making sure that the laws of the United States are faithfully executed.^xii The predominant legal theory was that the size and scope of the federal government require executive discretion and the Take Care Clause was the limit on this discretion, preventing administrative overreach or inaction.^xiii The states’ argument was that DAPA amounted to the Executive branch declining to enforce immigration laws, with the Executive arguing that it could selectively enforce certain aspects of existing laws similar to the manner in which prosecutors enjoy the discretion of which cases to prosecute and which to dismiss.^xiv

These cases have become moot because DACA and DAPA existed at the sole discretion of the Executive and there is a new President. He has made no secret of his disdain for DACA and DAPA with ubiquitous “anchor baby ^xv” rhetoric. Even under President Obama, 2 million undocumented immigrants had been deported ^xvi but President Obama called for deporting “Felons, not families. Criminals, not children. Gang members, not a mom who’s working hard to care for her kids. [He said] We’ll prioritize just like law enforcement does every day.”^xvii However under President Trump the Immigrations and Customs Enforcement (ICE), a Division of the Department of Homeland Security, has new marching orders.”^xviii These orders call for expansion of expedited removal, a process that allows individuals to be swiftly deported without seeing a judge, and the creation of new immigrant detention centers along the border.^xix The orders also mandate a surge in the hiring of immigration officers and agents, and use the threat of cuts to federal funding as a means to push local law enforcement agencies into deputizing officers as de facto immigration agents.^xx

The administration has also requested $4.5 million for immigration-related initiatives including an initial $2.6 billion to begin the border wall expansion and $314 million to hire 1,000 new ICE staffers.^xxi The White House has also requested $1.5 billion to expand the nation’s immigrant detention system.^xxii These funds are contingent on Congressional approval but anyone watching can see the trend. And immigrants, legal and undocumented, are watching.

ICE knows the identities of everyone who received deferred action under DACA and DAPA and these recipients can guess whether their 2 year licenses will be renewed. ICE knows their addresses and their employers’ identities’ so ICE knows where to go when it is time to begin deportation procedures. There is now a very real risk that these people who received what they thought was a shot at legitimacy will have to return underground or risk being the first people deported. What will happen to the American children of people who were DAPA recipients? To which countries will DACA recipients be deported? Will someone who came from El Salvador be deported to Mexico? Will a Senegalese be deported to Haiti? Will people languish in one of the soon-to-be-constructed immigrant detention centers while someone from ICE makes these decisions? Who will pay for their meals, baths, and clothing while they are detained? Will the people who had that piece of legitimacy have to return to using fake social security numbers, visiting free clinics under pseudonyms, and working for cash without benefits while fearing deportation? Will they President Trump?

1.  Albert R. Hunt, Facing the Facts on Illegal Immigration, N.Y. Times (July 19, 2015), http://www.nytimes.com/2015/07/20/us/politics/facing-the-facts-on-illegalimmigration.html?_r=0

2.  Memorandum from Janet Napolitano, Sec'y of Homeland Sec., to David V. Aguilar, Acting Comm'r, U.S. Customs & Border Prot., Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children (June 5, 2012) [hereinafter DACA Memo], https://www.dhs.gov/xlibrary/assets/s1-exercising-prosecutorial-discretionindividuals-who-came-to-us-as-children.pdf.

3.  DACA Memo, supra note 2 at 3 (“For individuals who are granted deferred action by either ICE or USCIS, USCIS shall accept applications to determine whether these individuals qualify for work authorization during this period of deferred action.”).

4.  See Jens Manuel Krogstad & Ana Gonzalez-Barrera, If Original DACA Program is a Guide, Many Eligible Immigrants Will Apply for Deportation Relief, Pew Research Ctr. (Dec. 5, 2014), http://www.pewresearch.org/fact-tank/2014/12/05/if-original-dacaprogram-is-a-guide-many-eligible-immigrants-will-apply-for-deportationrelief/ (estimating that 1.1 million people were eligible for DACA).

5.  Number of I-821D, Consideration of Deferred Action for Childhood Arrivals by Fiscal Year, Quarter, Intake, Biometrics, and Case Status: 2012-2015 (September 30), U.S. Citizenship & Immigration Services, https://www.uscis.gov/sites/default/files/USCIS/Resources/Reports%20and%20Studies/Immigration%20Forms%20Data/All%20Form%20Types/DACA/I821_daca_performancedata_fy2015_qtr4.pdf. The Department also approved 93% of the 513,363 renewal applications it received.

6.  Memorandum from Charles Johnson, Sec'y, to Leon Rodriguez, Director, U.S. Citizenship & Immigration Services, Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children and with Respect to Certain Individuals Who Are the Parents of U.S. Citizens or Permanent Residents (Nov. 20, 2014) [hereinafter DAPA Memo], http://www.dhs.gov/sites/default/files/publications/14_1120_memo_deferred_action.pdf.

7. Id.

8.  See DACA Memo, supra note 2, at 3 (“This memorandum confers no substantive right, immigration status or pathway to citizenship. Only the Congress, acting through its legislative authority, can confer these rights.”); DAPA Memo, supra note 6.

9. Texas v. United States, 787 F.3d 743 (5th Cir. 2015)

10.  Id.

11.  In addition to the questions presented by the petition, the parties are directed to brief and argue the following question: Whether the Guidance violates the Take Care Clause of the Constitution, Art. II, Sec.3.” United States v. Texas, SCOTUSblog, http://www.scotusblog.com/casefiles/cases/united-states-v-texas/ (last visited Oct. 20, 2016).

12.  U.S. Const. Art. 2 § 3.

13.  Seth Davis, Standing Doctrine's State Action Problem, 91 Notre Dame L. Rev. 585, 613 (2015) (quoting Harold J. Krent, The Private Performing the Public: Delimiting Delegations to Private Parties, 65 U. Miami L. Rev. 507, 531 (2011)) (“Article II vests the ‘executive Power’ in the President, gives the President the power to appoint ‘Officers of the United States', and obliges the President to