President-elect Donald Trump has pledged to rescind many of President Barack Obama’s executive actions — above all, his 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 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 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 use information from these immigrants’ DACA applications to launch a deportation sweep that targets them.
That is something he cannot do. Applicants provided extensive information about themselves 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 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 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 a 1959 case, 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 a 1965 case, the court held that the government could not prosecute protesters for demonstrating in a location where the police had said the protest was allowed.
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 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.
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 into an authority to change the effective scope of legal obligations. The 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.
But that is no longer the issue. 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 resist any suggestion to use the data.
Zachary Price is an associate professor at the University of California’s Hastings College of the Law. He wrote this for The Washington Post.