President-elect Donald Trump has pledged to rescind many of President Barack Obama’s executive actions, including above all Obama’s controversial immigration programs. That will largely be Trump’s prerogative, but there are constitutional limits on how much he can undo. In particular, the Fifth Amendment’s due process clause prevents the new administration from seeking deportation based on information that immigrants themselves provided in applications for Obama’s programs.
Under the 2012 Deferred Action for Childhood Arrivals (DACA) program, the administration provided work authorization and a promised reprieve from deportation to hundreds of thousands of immigrants who arrived in the United States without authorization as young children and met certain other criteria.
There is no question that Trump can cancel this program and even resume enforcement against its intended beneficiaries, however heartless that would be. Yet recent news reports suggest that many fear he could go further and use information from these immigrants’ own DACA applications to launch a deportation sweep that targets them.
That is something he cannot do. DACA applicants provided extensive information about themselves — their names, addresses and eligibility for the program — based on the government’s assurance that the proffered information would be “protected from disclosure” to immigration enforcement officials. These immigrants effectively documented their own unauthorized presence in the United States. The Constitution protects their reliance on the government’s good faith in soliciting such damaging information.
The Constitution’s due process clause protects all people, including immigrants, against deprivation of “life, liberty, or property without due process of law.” As the Supreme Court has long recognized, this guarantee precludes certain forms of entrapment. The government cannot trick people into believing their conduct is perfectly legal, only to turn around and punish them for engaging in the very conduct the government encouraged.
In the 1959 case Raley v. Ohio, the Supreme Court held that witnesses before a legislative commission could not be prosecuted for refusing to answer questions when the commission itself had told the witnesses they could decline to answer self-incriminating questions. Doing so, the court said, would amount to “the most indefensible sort of entrapment by the State.” Similarly, in the 1965 case Cox v. Louisiana, the court held that the government could not prosecute protesters for demonstrating in a location where the police had said the protest was allowed.
Admittedly, the anti-entrapment principle established by these cases is narrow. These cases do not mean that executive officials can provide whatever guarantees they want against future enforcement. Executive officials generally have discretion only over how the law is enforced, not over what the law itself requires.
But access to DACA applications for enforcement purposes is not necessary to vindicate the principle that executive officials lack authority to change the law. The very fact that the government can still enforce immigration laws suffices to protect that principle.
Even more important, using the information for enforcement would raise particularly acute fairness concerns — concerns of precisely the sort that courts have identified as justifying due-process protection. DACA applicants knew the benefit they were receiving was revocable; the Obama administration said so. But it is implausible to think they expected the government to convert the program into a massive deportation dragnet.
Indeed, it is hard to imagine a more “indefensible form of entrapment” than establishing a program to enable trusting young immigrants to live and work openly, only to use their own applications as a basis for deportation. Just as the witnesses in Raley declined to answer questions based on an assurance that they held the right to do so, these immigrants relied on government assurances that their applications would be used only for their benefit — not to ruin their lives.
On this issue, it makes no difference whether DACA was a lawful program to begin with. I was an early critic of DACA. Despite my sympathy for the program’s intended beneficiaries, I argued in a 2014 article that the DACA program involved an unlawful attempt to convert prosecutorial discretion — the government’s inevitable need to prioritize some cases over others — into an authority to change the effective scope of legal obligations. The U.S. Court of Appeals for the Fifth Circuit took a similar view in its decision suspending a subsequent larger program, and the Supreme Court affirmed the Fifth Circuit by an evenly divided 4 to 4 vote.
But that is no longer the issue. At this point, quite simply, using DACA applications against the applicants would be an outrageous way for the government of the United States to treat people. Due process will forbid President Trump from doing so. He should take this idea off the table.