Originally Published in The New York Times.
As secretary of homeland security, she signed the memorandum that created the popular program protecting ‘Dreamers.’ Now she’s fighting to save it.
By Cristian Farias
Feb. 2, 2019
Mr. Farias is a member of the editorial board.
Janet Napolitano, who was instrumental in creating the DACA program, is now defending it in court as the president of the University of California.CreditJessica Chou for The New York Times
For all his efforts to undo the work of the prior administration, President Trump’s most striking failure has been his attempt to reverse the Deferred Action for Childhood Arrivals program — a reprieve from deportation President Barack Obama issued nearly seven years ago to undocumented immigrants who were brought to the United States as children.
In September 2017, Mr. Trump ordered an end to the program, known as DACA. The administration argued that it was an improper use of executive power that circumvented Congress and protected people who were breaking the law. But beginning in January of last year, a number of judges put a hold on DACA’s demise, finding the administration’s legal reasoning for ending it weak and in violation of the Administrative Procedure Act. Mr. Trump tried to offer a limited, statutory version of DACA as a bargaining chip during negotiations to end the government shutdown. But when the Supreme Court kept those holds in place while the appeals continued, its barter value was eliminated
As secretary of homeland security under Mr. Obama, Janet Napolitano signed the memorandum that put DACA in place. In a legal twist, she’s now defending her handiwork in court, this time as president of the University of California, which has thousands of DACA students and is suing to overturn the DACA reversal. So she has a unique viewpoint of the controversy.
This interview has been edited and condensed for clarity.
Q. When you signed the memorandum that created the DACA program in 2012, did you ever imagine it would take on a life of its own?
A. No. (Laughs). I thought it would help a group of individuals who were undocumented in the country who in any circumstance would be low-enforcement priorities. But nonetheless, so long as they didn’t have any protection they were always having to look over their shoulder and, of course, they couldn’t get work authorization. And it just seemed to me that that was just wrong. And when Congress was unable to pass a Dream Act [which would write DACA-like protections into law and offer a path to citizenship], we began looking at what could the executive branch do. And we settled on the theory that the executive branch always has the authority to establish prosecution priorities.
[The Department of] Justice doesn’t prosecute bad-check cases, they prosecute bank fraud cases. And it seems that in immigration enforcement the same theory would apply. That’s what we based the creation of DACA on.
Q. This concept of “prosecutorial discretion” is the linchpin of the DACA program. And yet the Trump administration has said very little about prosecutorial discretion in these legal challenges.
A. I think it’s because they proceed on the theory that DACA was illegal from its inception. And of course it’s not illegal. The administration, the Obama administration, had the authority to establish priorities for immigration enforcement. And DACA is simply a reflection of that. And I think having announced the rescission of DACA by saying it was illegal to have DACA, they led with their chin.
Q. Was your decision to institute DACA controversial with D.H.S. leadership and the rank and file? Your memorandum was addressed to the different components at the Department of Homeland Security — a very law-and-order-type agency.
A. No. The main component that has the responsibility for carrying out DACA is U.S.C.I.S. [the United States Citizenship and Immigration Services]. Those are the folks that help people adjust their citizenship status, so this was in a way very consistent with their ethos. And with respect to ICE [Immigration and Customs Enforcement], if there was any resistance in the field, it never came to my attention.
Q. President Obama called DACA a “temporary stopgap measure,” and instinctively, I imagine, you always understood a future administration could get rid of it. And yet here we are. To what would you attribute DACA’s endurance?
A. One, its sheer numbers — close to 800,000-some-odd DACA recipients. And they’re attending colleges and universities. They’re…some of them have started their own small businesses. They’re homeowners. By now they’re parents. They’re well entrenched in the fabric of U.S. life. And when DACA was announced by the president, it got virtually no pushback. It was popular from the get-go. And the polling on it continues to show that it’s very popular. I think that has helped sustain it. If the administration were going to make a decision to rescind it, there was a right way and a wrong way to do that, and they did it the wrong way.
Q. Nearly seven years later, the Trump administration believes, as do some states, that DACA is unconstitutional — an executive usurpation of power.
A. It wasn’t and it isn’t. It’s a fair exercise of the executive’s authority. And it’s interesting to contrast the administration’s arguments on the travel ban, for example, [which] are based on the broad authority of the executive in enforcing immigration law. And it’s exactly that kind of authority that they’re trying to restrict in the DACA litigation. So consistency isn’t their best thing.
Q. Arizona, which you led as governor prior to becoming Homeland Security secretary, recently allowed Dreamers to obtain driver’s licenses after a prolonged legal battle. Why this lingering antipathy toward the program’s beneficiaries from a few isolated quarters?
A. Maybe it links to immigration politics generally, not just about DACA — the feeling that immigrants are here, they’re here against the law, they’re taking jobs away from Americans, they’re depressing wages, they’re taking all these public benefits, and they ought to all be deported. That kind of feeling about immigration generally still spills over to antipathy toward Dreamers, which, as you know, were brought here as children. And most of them really know only the United States as home.
Q. Many people would be surprised to learn that you’re now fighting the DACA reversal in the courts as president of the University of California. Why did you jump into this dispute?
A. I thought DACA was right then, and I thought DACA was right now. And the only thing that would be better would be for Congress to finally take up some of these immigration issues and resolve them permanently in statute.
Q. Judges in California, New York and Washington, D.C., who have ruled against the administration have had harsh words for the way then-Attorney General Jeff Sessions and the Department of Homeland Security went about rescinding DACA. Do you take that as vindication?
A. Yeah! (Laughs.)
Q. What do you make of the Supreme Court’s recent inaction on DACA? It doesn’t look like the justices will be weighing in this term.
A. I can only speculate. One speculation is an institutional reluctance to take a case that there’s no urgency about. The DACA program has remained in place since we got the original injunction. And there’s no immediate urgency to taking this case. And to do so would put the court in the middle of whatever is going on between the president and the Congress. So maybe there’s a little recognition that this is not the place where the Supreme Court should be jumping.
Q. Is DACA your biggest legacy?
A. It’s either that or T.S.A. PreCheck. (Laughs.)