Congress

Updated October 2020

Due to the failure of Congress to pass the DREAM Act, the President instituted the Deferred Action for Childhood Arrivals (DACA) policy in 2012. This executive order allowed certain undocumented immigrants who entered the country before their 16th birthday and before June 15, 2012, to receive a renewable two-year work permit as well as an exemption from deportation.

Facts You Should Know

Facts about DACA:

To apply for DACA, individuals must pay a $495 application fee, submit numerous forms, and produce documentation showing they meet the requirements.
DACA does not grant legal status to an applicant or negate a prior period of unlawful presence.
DACA individuals pay income and social security taxes, but are exempt from the requirement to have health insurance.
As of March 31, 2020, there have been almost 3 million requests (combined initial and renewal) for DACA protection.

Recent Litigation on DACA:

In September 2017, the Trump Administration announced that it was ending DACA. In response several lawsuits were filed against the administration for terminating DACA unlawfully. The results: three nationwide injunctions issued by U.S. district courts — in California, New York, and the District of Columbia — have allowed people who have previously had DACA to renew their deferred action.
On November 12, 2019, the U.S. Supreme Court heard oral arguments on DACA. The Supreme Court did not “stay” any of the lower court orders, which meant that DACA recipients who have or previously had DACA can continue to submit applications.
On June 18, 2020, in a 5-4 decision, the U.S. Supreme Court held that the current administration did not provide an adequate justification for ending DACA, allowing the program to remain in place. The current 661,000 DACA holders retain their protections and can continue to seek renewals with U.S. Citizenship and Immigration Services, allowing them to work legally and without fear of deportation. The decision paves the way for USCIS to resume taking new applications for DACA from an estimated 66,000 qualified Dreamers who currently are not protected under the policy.
On July 28, 2020, a new DACA policy was announced that would no longer accept new applications and would allow existing DACA recipients to renew their protections for only one year. This is in defiance to both the US Supreme Court ruling and the July 17, 2020, federal court order to begin accepting new DACA applications immediately.

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Updated October 2020

The Executive Branch consists of the offices of the President and Vice President and the executive agencies created to administer the laws enacted by the Legislative Branch. The President enforces the federal laws, serves as commander in chief, and appoints judges and other officials. Among the President’s powers are his ability to declare executive orders, memoranda, and proclamations, which are directives to the Executive Branch. Every President except William Henry Harrison has issued executive orders, including George Washington.

The Legislative Branch (Congress) includes the House of Representatives, whose membership is determined by the population of the states, and the Senate, which is composed of two people for every state. The Legislative Branch makes the laws, including the laws relating to immigration.

The Judicial Branch is headed by the Supreme Court, which hears cases that involve either a Constitutional issue (including the Constitutionality of an executive order) or a dispute among the lower courts. Immigration courts are not part of the Judicial Branch; those courts fall under the Executive Branch, specifically the Department of Justice.

The three branches are separate and autonomous. However, the Constitution includes checks and balances to prevent any one branch from becoming too powerful. Another check was created in 1946: the Administrative Procedures Act, with which the President and his executive agencies must comply when issuing any executive orders or new agency rules.

Facts You Should Know

Significant developments in immigration have been accomplished by executive orders. Examples include:

During WWII, President Roosevelt sent U.S. citizens of Japanese descent to internment camps.
President Obama created the Deferred Action for Childhood Arrivals (DACA) in 2012.
President Trump has issued over a dozen executive orders in an effort to limit immigration.

In recent years, more developments regarding immigration have occurred through executive orders, because:

Congress has been unable to agree on a comprehensive immigration reform bill, and
Congress has been unable to pass a budget, which gives the President the opportunity to allocate money with less obstruction.

Shortly after his inauguration, President Trump issued a series of executive orders seeking to ban people from specified Muslim countries from entering the country (the “Travel Ban”). A federal district court entered an injunction against the first Travel Ban on the grounds that it likely violated the Due Process and Equal Protection clauses of the Constitution. However, a second and third version of the Travel Ban were promulgated and, in 2018, the Supreme Court allowed the Travel Ban to remain in effect while the legal challenges (which continue to date) proceeded. In January 2020, a fourth executive order added six more countries to the Travel Ban.

In 2017, President Trump issued a memorandum through the Department of Homeland Security rescinding President Obama’s executive order on DACA. In June 2020, the Supreme Court overruled President Trump’s memorandum (thus upholding DACA) on the grounds it violated the APA by not providing an adequate reason for such rescission.

Fewer than 4% of all executive orders have been revoked.

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