I had seen one of the arguments towards Trump's efforts to end/reform DACA was that Obama had exceeded his Presidential power when executing such an order.

U.S. District Judge William Alsup rejected the argument that then-President Barack Obama had exceeded his power in creating DACA and said the Trump administration failed to consider the disruption that ending the program would cause.

Can someone provide some clarity around this as well as the purpose and limitations to executive orders in general. I'm curious if we remove the emotional elements, that we all care for the DREAMERS, what are the truths around the powers that be in respect to our republic.

Sources are appreciated, but I would appreciate a response not convoluted with legal jargon that requires its own set of interpretations.

3 Answers 3


The United States Court of Appeals for the 9th Circuit ruled unanimously today that President Obama did not exceed his constitutional and statutory authority in issuing the DACA executive order, and recalled precedents of similar actions to protect Hungarians who found themselves in the United States in the 1950s from being deported to that newly totalitarian regime, and again in another situation during the Reagan administration.

This well reasoned opinion reflects the majority view that DACA was constitutional because Presidents have broad authority to set immigration enforcement policy, although there are minority views with respect to almost every conceivable legal question.

Note also that the broad authority to refrain from fully enforcing immigration laws in certain circumstances is a subset of the general authority of the executive branch to refrain from enforcing almost all laws in some circumstances as a matter of policy.

For example, the executive branch is fully within its rights not to prosecute a crime even in the face of clear evidence that a crime was committed. The executive branch, could, for example, decide as a matter of policy that it will refrain from prosecuting people who punch Nazis, even when it has enough evidence to convict people who punch Nazis of assault. And, if it did so, the victims of those crimes would have no legal right to legally challenge that decision.

Also notably, the 9th Circuit did not hold that the Trump Administration cannot change DACA as a matter of policy. Instead, it held that because it argued that it was required to change DACA because DACA was unconstitutional, when DACA wasn't actually unconstitutional, that this reason for changing DACA was invalid and that the Trump Administration had to reconsider the issue from scratch knowing that DACA was constitutional.

The 9th Circuit also noted, without resolving the question, that the Trump Administration might be estopped from repealing DACA for current beneficiaries of the policy. The 9th Circuit reasoned that this might be the case because those who participated in it exposed information about themselves that amounted to a confession that they are deportable, only in reliance upon a promise from the Obama administration that their confession would not result in their deportation. Thus, using that evidence to deport someone would be similar to using illegally obtained evidence in a criminal prosecution, which is unconstitutional.

  • Re "...certain circumstances...": please provide more detail, (even a URL would do), on what those circumstances generally might be.
    – agc
    Nov 9, 2018 at 6:44
  • There is a link to the 9th Circuit opinion's full text in the answer. But, when I say "the broad authority to refrain from fully enforcing immigration laws in certain circumstances", I mean any set of circumstances under which an administration, as a matter of policy, chooses not to enforce the immigration laws, whatever the administration in question decides that those circumstances will be.
    – ohwilleke
    Nov 9, 2018 at 7:00

An executive order is just the president telling the employees of the executive branch how to act. An executive order cannot set law. It can impact regulations, which guide how the executive branch interprets the law. That's one view.

The other view is that regulations are themselves laws. In that view, Congress has delegated some lawmaking ability to the executive branch. A president can direct that ability with an executive order.

There are two major judicial views in the United States. In one, the text of the law determines its enforcement. The first paragraph is consistent with that view. This is called textualism. There are variants of this, e.g. originalism (original meaning determines current meaning).

In the other judicial view, laws should be interpreted in pragmatic ways. As such, if the judge considers the Deferred Action for Childhood Arrivals (DACA) program to be good policy, then it must be valid law as well. The second paragraph is consistent with that view. This is called pragmatism or sometimes the living constitution.

There are other judicial philosophies, but these are the main ones in the US. Under textualism, DACA is rather clearly beyond the president's scope. Sure, the president can not prosecute people. But here the president went further and created a new program to institutionalize his decision not to prosecute previous illegal acts and promise that he wouldn't prosecute future illegal acts (e.g. hiring people illegally in the country).

In the pragmatic school, good policy is always legal. So if the judge agrees with the policy, then the judge can just ignore countervailing laws. Laws can't trump policy.

The Supreme Court currently has a textualist majority. So the most likely outcome is that DACA is unconstitutional, and Trump was correct to end it. The only way to pass DACA is legislatively. But of course, one of the textualists might choose to be a pragmatist on the actual day of decision. We won't truly be able to answer the question until the Supreme Court actually rules.

  • An executive order can "impact" both regulatory and statutory law, but the president cannot create regulations by executive order. Regulations are created by the process specified in the Administrative Procedure Act under specific regulatory authority delegated to the executive by statute. None of that has anything to do with executive orders. Can you provide a credible source that disputes the proposition that regulations are laws?
    – phoog
    Nov 9, 2018 at 6:30
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    Also, DACA beneficiaries are not subject to prosecution for illegally crossing the border because they were minors at the time. The only thing the program promises to do is to refrain from removing them from the US. It does not promise to refrain from prosecuting those who hire illegal immigrants; it authorizes DACA recipients to apply for work authorization. It's legal to hire someone with work authorization, regardless of the person's immigration status.
    – phoog
    Nov 9, 2018 at 6:37
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    "In the pragmatic school, good policy is always legal." This is not an accurate characterization of this judicial philosophy.
    – ohwilleke
    Nov 9, 2018 at 6:39

It's the POTUS' right to decide how much effort his administration spends on enforcing laws. Obama clearly decided to not spend any effort to uphold the laws regarding illegal immigration.

However, local police have their own budget, and the POTUS can't withhold that budget. States disagreeing with the federal administration are free to enforce the law anyway.

The argument is that it is not within the POTUS' power to promise people that the law doesn't apply to them. As that would in fact invalidate an existing law, which would require approval of Congress.

Was the enacting of DACA unconstitutional?

DACA promised 'Dreamers' that they would be immune to the immigration laws for a certain period.

The argument is that this immunity for an existing law is in fact invalidating an acting law without Congress' approval. And therefore unconstitutional.

Whether DACA is unconstitutional, is something that only the Supreme Court can decide. I believe the case is making its way through the courts, so we might get a definitive answer at some point in time.

  • 6
    This is not a correct characterization of DACA, let alone Obama's approach to immigration. See a rash of stories like washingtonpost.com/local/immigration/…, which describe the higher levels of deportation during Obama's terms. Nov 8, 2018 at 23:03
  • 3
    @jeffronicus is right, and on top of that, states disagreeing with federal policies on the enforcement of immigration law are not "free to enforce the law anyway." Most aspects of immigration enforcement are off limits for the states. See Arizona v. US.
    – phoog
    Nov 9, 2018 at 6:19
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    @phoog That's about a state adding laws on top of federal laws. I'm talking about enforcing existing laws.
    – Sjoerd
    Nov 9, 2018 at 7:39
  • @Sjoerd the only enforcement for someone who is illegally in the country, who cannot be convicted of a crime because he or she didn't come to the country of his or her own will, is to remove the person from the United States. States cannot do that; only the federal government can. And DACA only provides for a deferral of removal. Removal is a civil penalty; DACA does not stop the federal government from pursuing criminal charges against people who have committed crimes. (Even many adults who are in the country illegally have committed no crime.)
    – phoog
    Nov 9, 2018 at 21:47
  • Can you support that statement on Obama? During his tenure, the following statement by a congresswoman Wasserman Schultz passed the fact check: "President Obama has the most border patrols and border security deployed at the border of any previous president."
    – JJJ
    Oct 10, 2019 at 4:04

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