The Future of DACA

 

This is the fifth and final entry in a series on the history of the DACA program, which provides protection from deportation to certain illegal immigrants who entered the US when they were younger than 16. 

 

The policy arguments in favor of the DACA program are incredibly strong.

But the legal arguments that the program violates Congress’s authority over immigration law are also strong.

For years, DACA has existed uncomfortably at the intersection of the legislative, executive, and judicial branches of the federal government.

The Obama administration created the DACA program as a unilateral act of the executive branch, following the failure of the DREAM Act in Congress.

The program was implemented. Initially, it wasn’t challenged in court.

Two years later, the Obama administration attempted to expand DACA and create a similar program, known as DAPA.

Republican states sued to challenge DAPA and DACA Expansion. Ultimately, the courts struck down these programs.

Now some of those states are challenging the original DACA program itself. 

 

Likely outcome

Judge Hanen will likely rule that DACA violates the Administrative Procedure Act. His decision will be appealed, and the Fifth Circuit will likely reach the same conclusion, as it did in the earlier DAPA litigation.

The Supreme Court, which has become more conservative in the years after it reached a 4-4 tie in the DAPA litigation, will likely find that the DACA program, as it currently exists, is illegal.

But Hanen, the Fifth Circuit, and the Supreme Court have each indicated there is a version of the DACA program that would likely withstand judicial review.

This bare-bones version of DACA would only provide protection from deportation.

It wouldn’t provide DACA recipients, known as dreamers, with lawful presence, permission to legally work in the US, eligibility for federal benefits such as Medicare and Social Security, or state benefits that result from being legally present in the US.

Losing permission to legally work in the US would be a significant loss for dreamers. 

But a program that only provides protection from deportation would be better than nothing at all. 

 

Congressional prospects

Of course, Congress could solve all of this by simply passing a DREAM Act that would grant dreamers permanent legal status, which Biden would eagerly sign.

Following the success of both Democratic candidates in the Georgia Senate runoffs, Democrats control both houses of Congress.

But they have only the barest of majorities in the US senate. With 50 seats, a party-line vote would require Democrats to receive a tie-breaking vote from Democratic Vice President Kamala Harris.

The Dream Act would easily pass in the house, but the bill would have difficulty clearing the 60-vote threshold that it would need to bypass a Republican filibuster in the senate. That closely mirror the situation in 2010, when the DREAM Act was the closest it has ever been to passage.

However, Democrats could vote to eliminate the filibuster by a simple majority vote.

But doing so would allow Republicans to more easily pass bills Democrats strongly oppose the next time Republicans have a majority in the senate.

The question becomes whether any specific bill Democrats couldn’t otherwise pass is important enough to convince Democrats to eliminate the filibuster.

Securing passage of the DREAM Act, and the certainty it would provide dreamers who were brought to the US as children, is a strong argument for bringing the filibuster to an end.

But I think it’s a close call.

Personally, I don’t know whether approving the DREAM act and other legislation Democrats want to approve is worth allowing Republicans to more easily approve their preferred bills the next time they control the senate.

 

Bottom Line 

It will take a few years, but the courts appear likely to ultimately overturn the DACA program as it currently exists.

If Congress doesn’t finally step in to approve the DREAM Act, the protections the executive branch will be able to offer dreamers will be fairly meager.

As has been the case from the beginning, the ball is in Congress’s court.

But I’m not holding my breath.

The odds are almost always against Congress doing the right thing.

Biden commits to protect DACA

 

This analysis is the fourth in a series on the history of the DACA program. 

 

President Joe Biden has pledged to protect DACA, a program created by the Obama administration that provides protection from deportation to certain illegal immigrants who entered the US when they were younger than 16.

Biden served as Obama's vice president.

Biden released an statement celebrating DACA on the program’s eight-year anniversary, June 15, 2020.

“The Deferred Action for Childhood Arrivals (DACA) program was an historic achievement of the Obama-Biden Administration, and it was a monumental victory for all those proud members of the community who pushed and pushed for these young people to have a chance at the American dream,” Biden wrote.

“More than anything else, it was the right thing to do.” 

 

 

(Photo courtesy of whitehouse.gov)

 

Biden praised DACA recipients, known as dreamers, for serving in the US military and for helping America navigate the coronavirus pandemic.

Biden said more than 200,000 dreamers are essential workers and almost 30,000 dreamers are health care workers.

“Simply put, they are committed to making this nation better and stronger, and our country cannot afford to lose their incredible talents,” he wrote. “It’s long past time we permanently remove the uncertainty and threat of deportation from their lives.”

Biden said DACA was never meant to be a permanent solution. He called on Congress to approve the DREAM Act.

“Dreamers deserve to be able to plan their lives with confidence, as do the 11 million undocumented individuals who are living in and enriching our country every day,” he said.

“On my first day as President, I’ll be sending to Congress a bill outlining a clear roadmap to citizenship. And, as we work to pass a permanent, legislative reform through Congress, I’ll use the full extent of my executive authority to protect Dreamers and keep their families together.” 

 

(President Biden signed 17 executive orders, memos, and proclamations on his first day in office. Photo Credit: Doug Mills, New York Times)

On Biden’s first day as president, Jan. 20, 2021, he signed a memo directing members of his administration to protect the DACA program.

“The Secretary of Homeland Security, in consultation with the Attorney General, shall take all actions he deems appropriate, consistent with applicable law, to preserve and fortify DACA,” Biden instructed.

 

Lawsuit

Despite Biden’s pledge to protect DACA, a federal lawsuit threatens to bring the program to a close.

Several Republican states, including Texas, are challenging the legality of DACA in court.

Remember Texas Attorney General Ken Paxton?

Paxton dismissed his lawsuit against federal immigration policy after the Trump administration rescinded DACA.

But Paxton and officials from other states revived their lawsuit in May 2018 after federal judges blocked the Trump administration from terminating the DACA program. 

 

 

(Texas Attorney General Ken Paxton is leading a lawsuit challenging the DACA program. Photo Courtesy of texasattorneygeneral.gov)   

Their lawsuit alleges DACA is illegal because it violates the Administrative Procedure Act (APA) and the take care clause of the US Constitution.

“Our lawsuit is about the rule of law, not about the wisdom of any particular immigration policy,” Paxton said in a statement. “In a lawless exercise of executive power, the Obama administration attempted to bypass our elected representatives and put DACA in place by executive action. The debate over DACA as policy is a question for lawmakers, and any solution must come from Congress, as the Constitution requires.”

Andrew Hanen, a federal judge in Texas, is considering the case.

Hanen was nominated to become a federal judge by President George W. Bush. His nomination was confirmed by the US Senate in May 2002.

 

Preliminary decision

In a preliminary decision, on Aug. 31, 2018, Judge Hanen determined the states’ legal challenge against DACA would likely succeed.

Hanen ruled DACA likely violated the APA because the Department of Homeland Security had exceeded its statutory jurisdiction, because it created a program that violated the careful plan Congress laid out for federal immigration policy in the Immigration and Nationality Act (INA).

“Congress’s clear articulation of laws for the allocation of lawful presence and work authorization illustrates a manifest intent to reserve for itself the authority to determine the framework of the nation’s immigration system,” Hanen wrote.

“DACA would grant lawful presence and work authorization to a million people or more for whom Congress has made no provision and has refused to make such a provision time and time again.” 

 

(Judge Andrew Hanen is considering a legal challenge to the DACA program.)

Hanen ruled DACA also likely violated the APA because DHS hadn’t given the public a chance to provide input during a notice and comment period before the program was adopted.

Hanen declined to decide whether the DACA program likely violated the president’s responsibility under the US Constitution to “take care that the laws be faithfully executed.” 

 

No preliminary injunction

Even though Hanen ruled the legal challenge to DACA would likely succeed, he declined to issue a preliminary injunction that would terminate the program while the case proceeded.

Hanen said such a ruling would mean that DACA recipients would lose their lawful status, ability to work, ability to travel within the US, and many other benefits that result from lawful presence.

If he adopted an injunction terminating DACA, he said state officials and employers that support the DACA program might lose residents who they consider valuable members of their communities or employees who are integral to various schools, municipalities, and industries.

Hanen cited an important difference between his decision to deny implementing a preliminary injunction in the DACA case and his decision to grant a preliminary injunction in an earlier case challenging DAPA, a related program.

At the time of the legal challenge against DAPA, it hadn’t yet taken effect.

But Hanen explained DACA recipients and others had relied upon the program and its associated benefits for almost six years by the time Texas and other states filed their legal challenge to the program.

“One cannot put the toothpaste back in the tube, and one cannot unscramble the egg.” Hanen wrote.

“Here, the egg has been scrambled. To try to put it back in the shell with only a preliminary injunction record, and perhaps at a great risk to many, does not make sense nor serve the best interests of this country.”

Hanen said the states challenging DACA might ultimately win their lawsuit, but the public interest didn’t weigh in favor of providing them with a preliminary injunction.

“The Plaintiff States may ultimately prevail and prove their right to declaratory relief, but given the delay in confronting DACA, and given that the interests of the Defendant-Intervenors and the public outweigh those of the Plaintiff States, the Court denies the request for preliminary relief,” he said.

 

Congressional responsibility

Hanen, like so many others before him, called on Congress to approve a permanent legislative solution for DACA recipients.

Hanen agreed with the sentiment, expressed by a court in another DACA case, that, “the question of the eligibility of DACA recipients to remain in the United States and to continue contributing their skills and abilities to the betterment of this country is an issue crying out for a legislative solution.”

But Hanen said the strong arguments for Congress to change the law won’t compel him to overlook the legal problems with the executive branch seeking to find a solution on its own.

“Nevertheless, the failure of Congress to act does not bestow legislative authority on either the Executive or Judicial Branches, and the need for legislation cannot take precedence over the application of the Constitution and the laws of the United States, which this and all other federal courts are sworn to uphold,” he said.

“This court will not succumb to the temptation to set aside legal principles and to substitute its judgment in lieu of legislative action. If the nation truly wants to have a DACA program, it is up to Congress to say so.”

The lawsuit remains before Judge Hanen in federal court.