The DACA Disappointment
Terry H. Schwadron
July 18, 2021
Friday’s Federal District Court ruling from Texas on the DACA program was a major disappointment on several levels.
For openers, there is the justice and caring disappointment: These DACA (Deferred Action for Childhood Arrivals) Dreamers represent hundreds of thousands of fully participating adults in our institutions, paying taxes, serving in the military, driving businesses and professions of all sort.
They had no role in entering the country illegally; they were brought in as infants and children, and since Barack Obama’s executive order in 2012, have been assured that we have their backs.
But then there is the legal question, too: We already had a DACA decision by the U.S. Supreme Court, and in 2020 the court ruled against the Donald Trump administration’s decision to terminate the program, deeming its effort to overturn DACA “arbitrary and capricious.”
Yes, the Court did not rule on whether the program had been legally adopted through executive order. But this feels much like abortion or voter rights as if opponents feel as if they have to raise the same issues over and over, and then ignore any ruling they don’t like. What’s the point here, other than insisting that by confirming enough conservative judges will create a new majority that ignores the earlier case?
Finally, the new ruling — which undoubtably will be appealed all the way back to the U.S. Supreme Court — is waving a red flag in front of a gridlocked Congress to do something. I think we all can agree that there is zero chance that this Congress can act in any intelligible manner on the complexities of immigration when its sloganeering won’t even allow for resolution of far simpler matters, like metal detectors in the Capitol or an independent commission to unearth an official record of the Jan. 6 insurrection.
The Ruling
So, if tossing DACA was eliminated previously, what exactly was the Friday ruling?
Judge Andrew S. Hanen said President Barack Obama exceeded his authority when he created the program by executive order in 2012 because he did not seek public comment, as required by the Administrative Procedure Act.
However, the judge said current Dreamers should not be affected and Homeland Security could continue to process new applications but not approve them — thus, instantly creating yet another confusing bureaucratic logjam for an overwhelmed immigration system that can’t move forwards or backwards.
Whether the Administrative Procedure Act was followed precisely is a matter for judicial review, but there was tons of public comment at the time — which is why Obama finally acted to stem the refusal in Congress to deal with the situation directly. Since 2012, there have been yearly public discussions about DACA as a piece of the immigration puzzle, with even Trump offering to resolve it legislatively in return for financing his own Dream — a border Wall.
On his first day in office, Biden doubled down on allowing DACA. In polls, the idea of extending a path to citizenship to young immigrants who have enrolled has attracted bipartisan public support.
For the judge to decide to suspend this program over this technicality seems out of step with the larger issues we face in immigration. For the Congress to continue to ignore DACA is absurd. That the judge ruled the federal government should not “take any immigration, deportation or criminal action” against them that it “would not otherwise take” solves exactly nothing — not policy, not justice, not humanitarian concern, not even enforcement policies.
Isn’t This the Goal?
In the end, what is so galling here is that we have in DACA a record of 800,000 immigrants who, by all accounts, includes people who are working, contributing, supporting themselves and — by law — staying clear of crime. To qualify for DACA, applicants must have entered the United States before age 16, lived in the country continuously since June 2007, finished high school or enlisted in the military, and have a clean criminal record.
It is exactly the kind of program, including governmental review and approval person by person, that Republican conservatives insist is necessary to protect us from “open borders.”
Yet, the court challenges keep coming from the same folks who say that they oppose “activist” judges who create new law, hoping for yet another nail for another “liberal” immigration coffin.
The pandemic has helped to create a backlog of new and renewal applications, and Dreamers themselves have been asked to list home and work addresses, which they fear could be used for any deportations to countries they never have known should a court find the program unconstitutional. Renewals are required every two years.
Still, Dreamers are a drop in the immigration bucket. There are estimates of upwards of 11 million undocumented people in the United States, and despite Biden’s mixed communications on the border, the monthly numbers of people trying to come in physically or through asylum requests to flee horrid economic conditions or violence in Central America are on record pace.
We are likely to see Democrats try to attach some legislative DACA approval to a bill like the big infrastructure plan that they will try to push through the Senate on Democratic votes alone, but which requires parliamentary okay to use the budget reconciliation process to do so.
This latest challenge came from Texas, Alabama, Arkansas, Kansas, Louisiana, Mississippi, Nebraska, South Carolina and West Virginia where officials complain of the cost of education, health care and social programs. But driving the effort is the constant refrain of blocking immigration.
Judge Hanen had declined to issue a preliminary injunction, saying that the “egg had already been scrambled” and that “to try to put it back in the shell” did not serve the best interests of the country. He warned, however, that the states were likely to “prevail on the merits of their argument that DACA was unlawful.” In June. 2020, the U.S. Supreme Court disagreed, dismissing a challenge to DACA.
What he ruled in 77 pages is simple: There ought to be an official law rather than an executive order.
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