Fox News accused President Obama of a “constitutional violation” by claiming he enacted the DREAM Act in 2012 even though the legislation had not passed Congress. In fact, Obama has not enacted the DREAM Act. The deferred action program for undocumented youth he announced in 2012 was an exercise in prosecutorial discretion and is only a temporary measure that does not allow recipients to become legal residents or begin a path to citizenship as the congressionally proposed DREAM Act would have done. 

The Deferred Action for Childhood Arrivals (DACA) program, which President Obama announced in 2012, exempts eligible undocumented immigrants under 31 from deportation on a renewable two-year period. Those who qualify are eligible to apply for work permits and Social Security cards. However, DACA recipients do not have legal status nor are they eligible under the program to apply for legal status let alone a path to citizenship, as the previously proposed DREAM Act would have done, but they are considered to be lawfully present in the United States as long as they maintain their eligibility.

The absence of meaningful congressional action on immigration reform and in particular a legislative remedy for young undocumented immigrants has, as the Los Angeles Times reported, pushed many undocumented youths to “the limits of the president's program, saying it has not transformed their lives as much as they had hoped.”

The Times went on to note that while the program “has made it easier” for some immigrants to apply for jobs that were previously out of reach, “obstacles remain to actually getting them.” The Times added that “since the program started, more than 40% of participants have failed to land new jobs after receiving work permits, and only 45% reported getting pay increases, according to early results from a 2013 survey of 2,381 participants, conducted by Roberto G. Gonzales, an assistant professor at Harvard University's Graduate School of Education.”

But on Fox News, the difference between the DACA program and the DREAM Act was lost on contributor Peter Johnson Jr. who conflated the two, claiming Obama enacted the DREAM Act “by executive fiat” in 2012, saying that “by the stroke of the president's pen and whispers in the night to various agencies, they said we're gonna enact it anyway, even though Congress hasn't done it, and provide benefits to children of illegal immigrants.”

Johnson Jr. went on to list DACA -- which he continued to misname the “DREAM Act” throughout the segment -- as an example of a “constitutional violation” and accused Obama of looking “at the Constitution as a dynamic document that's pliable, that's movable for the will of the executive.”

In fact, the only similarity between DACA and the DREAM Act are the underlying requirements: the 2010 DREAM Act, which passed the House, would have applied to anyone who came to the United States illegally before age 16, was between 14 and 31 at the time of the legislation's enactment and had been in the country for at least five years before applying.

It also required applicants to be in or have completed high school, be in the armed services or have been honorably discharged, and not have been convicted of a felony, significant misdemeanor, or multiple misdemeanors. Individuals under 15 who were in, or were placed in removal proceedings, also would have been eligible to apply.

Undocumented youth under the DREAM Act who met these and other conditions would then be eligible to apply for permanent residency and eventually become U.S. citizens. No such path exists for DACA recipients.

Republicans in fact recognize that a long-term solution specifically aimed at helping undocumented youth is needed. In July 2013, Reps. Eric Cantor (R-VA) and Bob Goodlatte (R-VA) drafted a proposal called the KIDS Act that would have mimicked the DREAM Act by allowing young undocumented immigrants to become legal residents. At the time, Cantor stated of these young immigrants: “Certainly we ought to have the compassion to say these kids shouldn't be kids without a country, and we ought to allow them the life that they deserve.”

Fox News has repeatedly tried to cast the Obama administration's exercise of prosecutorial discretion through DACA as an unconstitutional executive order, even as legal challenges to the program have been dismissed as weak.

Indeed, discretion is widely accepted and has been used continuously by immigration officials for more than 30 years. Moreover, as the Immigration Policy Center has noted, the Supreme Court has made it clear that “an agency's decision not to prosecute or enforce, whether through civil or criminal process, is a decision generally committed to an agency's absolute discretion.”

In its fact sheet outlining the differences between DACA and the DREAM Act, the Center for American Progress explained that Congress still needs to pass a DREAM Act because DACA “gives only temporary legal status to DREAM Act-eligible youth, and it can be revoked with the stroke of a pen by the next president. Only Congress can pass a law -- the DREAM Act -- to protect these students permanently and give them a pathway to citizenship.”

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