Capital Commentary is the weekly current-affairs publication of CPJ, written to encourage the pursuit of public justice.

DACA, ENFORCE and Faithful Execution of the Law

Stephanie Summers


By Stephanie Summers

March 21, 2014

Beginning this week, United States Citizenship and Immigration Services (USCIS) began receiving renewal applications from the first individuals who received two years of deferred action under the Department of Homeland Security’s Deferred Action for Childhood Arrivals (DACA) program. To be DACA-eligible, applicants seeking renewal must demonstrate that they meet an extensive set of criteria and pay a $465 fee.

Research conducted by the Brookings Institution on the one-year anniversary of DACA found that most applicants were between fifteen to eighteen years old and were born in Mexico. Sixty-nine percent of applicants were age ten or younger when their families brought them to the United States, and 1 percent of applications were denied. Of course, the 99 percent DACA-acceptance rate cannot take into account the unknown and unknowable number of people who are ineligible for DACA and do not apply in the first place.

USCIS use of DACA has been controversial, with opponents charging that the Administration’s use of DACA violates Article II of the US Constitution. In recent weeks, DACA has been one of the examples cited as the rationale for recently passed H.R. 4038, the ENFORCE Act of 2014 (Executive Needs to Faithfully Observe and Respect Congressional Enactments of the Law) which allows for special court procedures and civil prosecution of the President by either house of Congress. DACA detractors alleged that Article II is not being upheld because the policy sets out a specific group of people for non-enforcement, namely those determined by USCIS to be DACA-eligible, and they cite the DACA acceptance rate to back it up.

Official USCIS guidance to applicants does not support the allegation of the ENFORCE Act’s sponsors. USCIS guidance to applicants states “USCIS will review your request to determine whether the exercise of prosecutorial discretion is appropriate in your case. Each case will be considered on an individual, case-by-case basis. Even if you satisfy the threshold criteria for consideration of Deferred Action for Childhood Arrivals, USCIS may determine, in its unreviewable discretion, that deferred action is not warranted in your case.” 

DACA was also cited in H.R. 3973, the Faithful Execution of the Law Act, which passed the House last week. This Act is designed to require the Attorney General to report to Congress any time a federal official establishes or implements a formal or informal policy to refrain from enforcing any provision of a federal law; it further requires the Attorney General to report on the reason for establishment or implementation of such a policy.

While neither the ENFORCE Act or the Faithful Execution Act seems likely to garner any support in the Senate, they highlight an existing congressional blind spot in US immigration policy.

Congress is responsible for legislating and enforcing laws governing citizenship. But it is also the responsibility of government, as the Center for Public Justice Guideline on the Family states, to “recognize and protect the family as an essential expression of its responsibility to uphold a just society.” It is the responsibility of government (the Guideline continues) to recognize that “healthy families help nurture future citizens, prepare future employers and employees, decrease public costs resulting from fragmented families, and build up strong social and cultural capital.”

In its Guideline on Family, the Center for Public Justice states that, "the family is the most basic of human institutions." Existing federal immigration policy fragments this most fundamental institution in more than one way. For example, some immigrant children brought to this country by their parents as minors are unable to be sponsored for citizenship by their family under current policies. Not only does this break up families, but it elevates government as sovereign over the institution of the family, undermining the appropriate authority of the institution of the family over minor children.

Congress violates the standards of public justice when it promotes policies that ultimately interfere with families’ abilities to uphold their responsibilities by subsuming the right authority of the family to the false sovereignty claim of the state. 

DACA represents an effort in federal agency policy to diminish government interference with the appropriate authority of the family, and it considers the full outcomes of healthy family life.  DACA conforms to standards of public justice as it offers not only an appropriate upholding of the law by lawful agency prioritization of enforcement efforts, but takes into account the public justice responsibility of government to enact policies that support families in fulfilling their God-given responsibilities. These are considerations Congress would do well to remember when working on immigration reform.
- Stephanie Summers is the Chief Executive Officer of the Center for Public Justice.

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Capital Commentary is a weekly current-affairs publication of the Center for Public Justice. Published since 1996, it is written to encourage the pursuit of justice. Commentaries do not necessarily represent an official position of the Center for Public Justice but are intended to help advance discussion. Articles, with attribution, may be republished according to our publishing guidelines.”