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.