Sameer M. Ashar and Stephen Lee, DACA, Government Lawyers, and the Public Interest, 87 Fordham L. Rev. 1879 (2019).
This article examines why the U.S. Department of Homeland Security moved away from a prosecutorial-discretion model to the Deferred Action for Childhood Arrivals program (DACA) to screen immigrants out of the removal pipeline. This Article adds an empirical dimension to the extant conversation on that shift. Drawing from seventeen interviews with political appointees within the executive branch during the Obama administration, as well as documents obtained under the Freedom of Information Act, this Article makes two points. First, our findings tend to confirm a “centralization” thesis. Our interview subjects — political appointees within the Obama White House and DHS — tended to confirm that DACA was intended at least in part to neutralize the influence wielded by frontline ICE officers, who tended to embrace an aggressive approach to enforcement. Second, this Article draws attention to an element of the DACA story that has thus far appeared intermittently or as an afterthought: the role of lawyers in the enforcement and administration of our nation’s immigration laws. Our data shows that political appointees embraced competing notions of government lawyering as they attempted to find relief for immigrants through regulatory channels. In trying to provide them with relief before DACA, the executive relied on a vision of lawyering commonly associated with the prosecution of criminal laws. This contrasts with the vision of lawyering at the heart of DACA. The period preceding and leading into DACA provides a useful opportunity to advance the discussion of the ethical basis for government lawyering, particularly in light of the successive attacks within the literature on the viability of an animating conception of the “public interest.”