President Trump may soon end Barack Obama’s signature immigration initiative, Deferred Action for Childhood Arrivals, or DACA, which protects immigrants without legal status who came to the United States as children. Although DACA supporters are mobilizing to save the program, a looming lawsuit is likely to sink it even if Trump does not. A tougher question is what Trump – and Congress – plans to do with the “Dreamers” once the policy is gone.
Trump once suggested that he intended to leave the Dreamers alone, but it’s clear that wasn’t an ironclad promise. Recent stories suggest is “conflicted” and “torn” over DACA, and the fate of its beneficiaries weighs heavily on him. He might claim, more in sadness than in anger, that he has no choice but to wind down the program given the likelihood of defeat in the courts. But if Trump has a bad hand to play, it’s because he dealt himself the cards. DACA is imperiled only because Neil Gorsuch, who is likely skeptical of the program’s constitutionality, sits on the Supreme Court instead of Merrick Garland, who was likely not. Confirmations have consequences. And if Trump actually cared about DACA, he would play out the string even in the face of likely defeat.
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Obama created DACA in 2012 after the failure of the DREAM Act, a legislative attempt to provide the dreamers with a path to citizenship. Stymied in his efforts to pass the bill, Obama chose to act on his own. Sidestepping Congress made things happen – but invited lawsuits.
DACA-eligible immigrants can apply to the Department of Homeland Security (DHS) for a renewable two-year permit that essentially assures that DHS won’t try to kick them out of the U.S. unless they commit a crime. Just as importantly, the program provides authorization to work legally and allows participation in certain earned-benefit programs such as Social Security and Medicare. Eligibility is limited to persons who have been in the U.S. since June 2007, arrived before turning 16 and didn’t turn 31 before 2012. A non-trivial criminal record or evidence of a security threat is a dealbreaker.
In 2014, while I was serving as a political appointee in DHS’s Office of General Counsel, the administration tried a similar approach to benefit parents of kids who were U.S. citizens. Deferred Action for Parents of Americans (DAPA) never went into effect, though, because it was challenged immediately by 26 states, led by Texas, which asserted that it provides relief not authorized by Congress. The states also challenged a simultaneous expansion of DACA that would have eased certain eligibility limits and extended the permit length to three years. They did not, however, challenge the original DACA program itself.
The states won a preliminary injunction in the district court that barred us from implementing DAPA or expanding DACA. The Fifth Circuit upheld the injunction on appeal. The Supreme Court, after Scalia’s death, split 4-4 in June 2016; as a result, the injunction remained in place.
As a candidate, Trump promised to “immediately terminate” DACA, which he called “one of the most unconstitutional actions ever undertaken by a president.” Yet he didn’t end it immediately, and said in January that Dreamers “shouldn’t be very worried” about being removed from the U.S. In June, DHS formally ended DAPA and DACA expansion, but took no action on the original, still-active DACA program.
Two weeks later, the calculus changed dramatically when 10 state attorneys general, led by Ken Paxton of Texas, wrote a letter to DOJ threatening to sue to kill DACA if Trump didn’t stop issuing new permits by September 5. Such a suit is very likely to succeed, as the legal issues would be identical to those raised in the 2014 lawsuit. (While some disagree, the differences are likely to relevant only to the speed of the litigation, not the final outcome.) It’s a fair bet that the four votes in the Supreme Court against DAPA in 2016 came from the right side of the bench: Alito, Kennedy, Roberts and Thomas. It’s an equally fair bet that newly confirmed Justice Gorsuch would vote to kill DACA. Had Garland won confirmation, DACA’s prospects would look quite different.
Of course, it’s possible that, say, Justice Anthony Kennedy could have a change of heart. (The other three, not so much.) Tallies in tie votes aren’t released, so Kennedy has kept his powder dry, and he has been known to change his mind in other cases – which is why Roe v. Wade remains the law of the land. Annoyance with the states for waiting five years to challenge DACA, thus allowing Dreamers a false sense of security, might color his views.
But that’s a slender reed on which to hang the Dreamers’ hopes. And it seems highly unlikely that Trump would backtrack on a campaign promise when the Supreme Court, in the end, will probably force him to make good on it. The end of DACA would represent the first big conservative victory of the Gorsuch era, and – weirdly – it could be won without any litigation at all.
Why did the states wait until now to threaten DACA? Probably because it’s too popular. There’s no way 26 states would have joined the 2014 lawsuit if it had imperiled all the Dreamers. Legally speaking, the number of state plaintiffs was irrelevant – Texas alone would have sufficed. But justices – especially Kennedy – care about optics more than they admit to themselves, so it helped to have a majority of states opposing Obama. Once Trump took office, Paxton presumably assumed DACA would meet a swift end. When it didn’t, he sent his letter – but could convince only 9 other attorneys general to join him.
What happens if Trump pulls the plug? It depends on how hard he pulls it. He could rescind all existing DACA permits, but even the Texas letter asks only that he stop issuing new ones or renewals. Once their permits expire, the estimated 780,000 DACA beneficiaries will – at best – return to their pre-2012 status. They won’t be able to work legally; some will work off of the books, some may find employers willing to falsify employment eligibility forms and others will use someone else’s Social Security number. In some states, including Texas, access to a driver’s license also disappears once lawful presence is revoked.
But the Dreamers can remain in the U.S. – if the Trump administration wants them to. The states’ letter – just like their 2014 lawsuit – took pains to state that their request “does not require the federal government to remove any alien.” The 2014 lawsuit expressly noted that the states were not challenging DHS Secretary Jeh Johnson’s 2014 memo setting forth priorities for immigration enforcement. That memo listed three categories of priorities – including national security threats, criminals and those recently issued a final order of removal by an immigration judge – and instructed Immigration and Customs Enforcement (ICE) to pursue removal of others only if an ICE field office director deemed that it would serve “an important federal interest.” In February, then-DHS Secretary John Kelly replaced the Johnson memo with a broader set of priorities and removed the requirement to seek high-level approval before pursuing others. But Kelly’s memo expressly carved out DACA recipients, and thus could easily be revised, if DACA ends, to provide more protections. Indeed, as the states expressly suggested in their 2014 lawsuit, DHS could even provide “low-priority identification cards” if it chooses.
DHS must provide clear guidance to ICE, an agency epitomizing the axiom that to a man with a hammer, everything looks like a nail. For example, DHS could announce formally that no former DACA recipient can be pursued for removal without express approval from a high-ranking official. Likewise, to address the fear that ICE will use the voluminous personal information that Dreamers submitted in their DACA applications to track them down, DHS could issue a directive to U.S. Citizenship and Immigration Services, which runs DACA, not to provide such information to ICE absent extraordinary circumstances.
Full relief, however, can come only from Congress – which can go far beyond DACA and provide citizenship to the Dreamers. The DREAM Act, which would have provided a path to citizenship, is sitting on the shelf waiting to be revived, although that’s likely to happen only as part of a package deal including stricter immigration enforcement (with or without a border wall) and cuts to legal immigration. There’s an appetite for such a deal within the Trump administration and even among immigration hardliners, but Democrats will resist efforts to hold Dreamers hostage to the policy aims of immigration restrictionists.
Recent history suggests pessimism. Bush and Obama, with far more legislative savvy than Trump, spent considerable capital on immigration deals without success. Absent legislation, Dreamers’ best hope may be vigilant oversight from their supporters in Congress (including key Republicans such as Senators Lindsey Graham and Jeff Flake) to guard against any efforts – whether by design or carelessness – to remove them from the country. In the meantime, Dreamers will hunker down and wait for brighter days.