Today we review the Department of Homeland Security’s guidance implementing President Obama’s decision to extend “deferred action” beyond those who were brought to the US as children, a group he directed be exempted from removal in June 2012 (“deferred action for childhood arrivals, or DACA). The justification given is the same as that for the companion Enforcement Priorities Guidance analyzed in Part 4: (1) the need for priority-setting due to limited resources and (2) the authority to exercise prosecutorial discretion.
The Expanded DACA Guidance is the main source of political controversy only in part because it dramatically expands the number of covered persons. The Guidance is controversial mainly because deferred action is inherently controversial. Congress has never statutorily unauthorized it, so DHS is acting in constitutionally contested territory.