A Constitutional Defense For Dreamers

09/14/2017 06:42 am ET Updated Sep 14, 2017
 Three DACA recipients listened near Trump Tower in Manhattan to Attorney General Jeff Sessions’s announcement.
New York Times
Three DACA recipients listened near Trump Tower in Manhattan to Attorney General Jeff Sessions’s announcement.

On Tuesday, September 5, 2017, United States Attorney General Jeff Sessions announced that the Trump administration would terminate DACA, the Deferred Action for Childhood Arrivals. 800,000 “Dreamers” were placed at risk of being deported from the United States. For many, who arrived as young children, the United States is the only country they know.

DACA permits registered undocumented immigrants brought to the United States before the age of 16 to legally work and attend school without fear of being deported. It does not grant them citizenship. It is not an amnesty. An estimated 1,000 DACA recipients serve in the United States armed services.

Sessions claimed that he was only enforcing the law, that he was protecting communities, taxpayers and American workers, that the DACA program put the United States “at risk of crime, violence and even terrorism,” and that President Barack Obama’s 2012 executive order establishing DACA was unconstitutional. Sessions followed up the announcement with a letter to the acting Secretary of Homeland Security ordering the agency to rescind DACA protections.

Donald Trump, who labeled DACA an “amnesty-first approach,” gave Congress a six-month deadline to pass immigration reform legislation before deportations are scheduled to begin. He left open the possibility that he will revisit the issue as the deadline approaches.

The United States Supreme Court has never ruled on the constitutionality of DACA. State Attorneys General from at least sixteen states and Washington DC are part of a suit, filed in federal court, arguing that efforts to rescind DACA are part of a racially biased Trump administration anti-Mexican campaign. Ninety percent of Dreamers have roots in Mexico. Trump may be using threats to deport Dreamers as a negotiating ploy to build support for a border wall separating the United States from Mexico. The State Attorney Generals assert that eliminating DACA is damaging because DACA beneficiaries pay taxes, go to state universities and contribute to communities and as workers. The University of California has filed another anti-discrimination suit against the Trump administration. Approximately 4,000 undocumented students are enrolled on its campuses.

The only time the Supreme Court touched on the legality of deporting immigrants without a trial was in the 1893 Fong Yue Ting vs. the United States decision. In that case the Court ruled by 6 to 3: “The order of deportation is not a punishment for crime . . . It is but a method of enforcing the return to his own country of an alien who has not complied with the conditions … which the Government of the nation … has determined that his continuing to reside here shall depend. He has not, therefore, been deprived of life, liberty, or property without due process of law, and the provisions of the Constitution securing the right of trial by jury and prohibiting unreasonable searches and seizures and cruel and unusual punishments have no application.”

Significantly, the decision to enforce a racist Chinese Exclusion law was made by many of the same Supreme Court Justices that ruled racial segregation was legal in the Plessy vs. Ferguson case three years later. That decision was overturned in 1954 in the famous Brown vs. the Topeka, Kanas Board of Education case.

An earlier generation of “Dreamers” barred entry into the United States because of racist policies.
Frank Leslie's Illustrated Newspaper
An earlier generation of “Dreamers” barred entry into the United States because of racist policies.

The Fong Yue Ting ruling made deportation a civil proceeding not covered by Constitutional due process protection, however it may no longer be relevant. In the 1890s, immigration laws were designed to bar entry, not to deport long-term residents like the Dreamers, and there was a one-year statute of limitations on removing illegal entrants.

The three dissenting opinions in Fong Yue Ting vs. the United States are especially important for a defense of Dreamers. Justice Brewer argued immigrants are entitled to full due process protection under the Constitution. Justice Field called their expulsion “cruel and unusual punishment.” He also stressed that previous courts had supported the right of the federal government to bar categories of immigrants, but not to summarily deport people already resident in the United States. Chief Justice Melville Fuller, also in a dissenting opinion, wrote that the Geary Act, which allowed for the expulsion of Fong Yue Ting, granted immigration authorities “unlimited and arbitrary power . . . incompatible with the immutable principles of justice, inconsistent with the nature of our Government, and in conflict with the written Constitution by which that Government was created and those principles secured.” This argument is also being made in opposition to Trump’s actions.

The Ting ruling may also not apply if, as Trump and Sessions insist, Dreamers committed crimes, not civil offenses, when they entered the country. In his statement repealing the DACA provision, Sessions invoked the need to enforce the law 21 times. As accused criminals, Dreamers are entitled to due process legal proceedings.

As Dreamer cases proceed through the courts, key questions will be the constitutionality of the Obama executive action establishing DACA, the constitutionality of the Trump/Sessions repeal, and the applicability of the Fong Yu Ying decision. While Trump has the same right as Obama to issue an executive decree, the fundamental debate will be over the Supreme Court’s interpretation of the 5th and 14th Amendments to the United States Constitution.

AMENDMENT XIV Passed by Congress June 13, 1866. Ratified July 9, 1868. Section 1. “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

The Fourteenth Amendment to the Constitution guarantees rights to persons as well as to citizens. While “All persons born or naturalized in the United States . . . are citizens of the United States,” the amendment is clear that no State can “deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” These are rights granted to all persons, not just citizens. The federal government is also bound to respect the legal rights of “persons,” not just citizens, under the Fifth Amendment, which protects “persons” from being “deprived of life, liberty, or property, without due process of law.”

In addition, the Fifth Amendment protects “persons” against being “compelled in any criminal case to be a witness against himself.” Since DACA recipients were required to provide proof that they were brought to the United States without documentation prior to their sixteenth birthdays, the repeal of DACA means that they were compelled to provide evidence that will be used against them. Other constitutional provisions may also protect Dreamers. Ex Post Facto laws, laws that make previous actions illegal, and cruel and unusual punishment, are banned by the United States Constitution.

Each person accused of a crime in the United States has the right to a “public trial, by an impartial jury, with representation and witnesses. That would mean 800,000 federal trials, not INS administrative hearings, if Trump tries to deport Dreamers. A jury trial costs the government at least $5,000 a day, $25,000 a week to prosecute. You can check my math, but by my calculations, 800,000 week long jury trials would cost a budget-breaking $20,000,000,000 or $20 billion.

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