DACA doesn't create any new law and wasn't done through EO, get your shit straight. it was done by DHS through Napolanito's (sp) memo. all it does is give preferred status, which any president can do, and allows them to work and use medicare. The social security stuff is kinda hazy but congress likes to write a lot of contradictory laws.
Having established that the executive does have the unilateral authority to permit certain undocumented immigrants to remain in the country — a process known as “deferred action” — the rest of the benefits afforded to DACA beneficiaries flow from federal law. Federal
regulations promulgated in 1981, for example, list “an alien who has been granted deferred action” as one of several kinds of immigrants who may “apply for employment authorization” from the federal government.
These regulations were
effectively ratified by Congress in 1986, when Congress enacted a “comprehensive scheme prohibiting the employment of illegal aliens in the United States.” Notably, this law includes an explicit exemption for non-citizens “authorized to be so employed . . . by the Attorney General.” (Subsequent legislation transferred this power to the Secretary of Homeland Security.)
A similar law governs Social Security and Medicare benefits. Though federal law ordinarily provides that “an alien who is not a qualified alien . . . is not eligible for any Federal public benefit,” the same law
allows Social Security and Medicare benefits to be paid “to an alien who is lawfully present in the United States as determined by the Attorney General” (a power that, again, was later transferred to the Secretary of Homeland Security).
In fairness, the case for providing Social Security and Medicare benefits to DACA beneficiaries is a little weaker than the case for the other benefits. A somewhat esoteric argument can be made that DACA beneficiaries are
not “lawfully present”within the United States, and therefore cannot be determined to be as much by federal officials. But even if this argument is correct, that does not change the fact that the lion’s share of DACA’s benefits — the ability to live in America openly and work freely — are firmly within the executive branch’s authority.
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