Posted on 07/01/19

What is DACA?

  • DACA, or the Deferred Action for Childhood Arrivals Program was created by President Barack Obama in 2012 by order of executive action. The program allows for undocumented immigrants who entered into the United States as children under the age of 16, and who have been living in the United States since June 15, 2007, were under the age of 31 on June 15, 2012, are enrolled in school, graduated from high school or have a GED, or have been in the armed forces, and have not been convicted of a felony or serious misdemeanors. This program is a way of allowing citizens to alert the United States government to their presence in the country, and ask to be “deferred” to deportation based on their good behavior, so that the country may pursue other immigrants engaged in illegal behavior first. A DACA recipient will be protected for two years, at which point they must re-apply for DACA protection. DACA is not a path to citizenship, but does allow the immigrant to attend school, obtain a work permit, or open a bank account.

DACA Timeline: The Obama Administration

  • President Barack Obama created the DACA program on June 15, 2012, and USCIS began accepting applications for the program 2 months later.
  • President Obama later expanded the DACA program in 2014 and expanded DACA eligibility and the period of deferred action to three years. He also created a program called the Deferred Action for Parents of Americans and Lawful Permanent Residents, which would defer deportation proceedings for parents with children who were citizens or lawful permanent residents.

DACA Timeline: The Trump Administration

  • President Trump pledged to repeal DACA as part of his campaign. In office, Trump has not completely ended the DACA program, but has said that DACA will no longer accept new applications, and renewals would only be processed for those whose DACA status expires by March 5th, 2018. This would eliminate a large number of DACA authorizations, until the final set of renewals would expire in March 2020. This was challenged by a federal judge in San Francisco who temporarily and partially blocked the administration action, ruling that it had to continue processing renewals while a legal challenge proceeds.

The DACA Recipients- Who Are They?

  • Currently, the average DACA recipient is 25 years of age, mostly residing in California, Texas, New York, Illinois, or Florida.
  • As of June 2016, there are 606,264 renewal cases, with 526,288 approved, 4,703 denied and 75,205 still pending.
  • Studies have shown that those who are DACA recipients live better lives than those who are not. They are more likely to hold a job, own a home, and graduate from school than immigrants who are undocumented. Studies show that DACA contributes positively to the economy in areas where there are large numbers of undocumented immigrants and many worry that the repeal of this program will harm the economy in those areas.

Is DACA Constitutional?

  • There is much debate over the original constitutionality of the DACA program instilled by President Obama, and legal minds are both strong supporters and in strong opposition of the program.
  • The affirmative:
    • Yes, DACA is completely constitutional. The program is one of deferred action, which is similar to the protections given to victims of human trafficking abd sexyak exploitation, or relatives of victims of terrorism, or spouses and children of US citizens. The argument behind the constitutionality of this program is that those who qualify for DACA were brought into this country as children and did not choose to break the laws, but were brought here by an adult who made the decision for them. This deferred program allows those who abide by society’s rules and were not given a choice in their immigration (similar to those who were trafficked) the ability to create a better life for themselves. Those who support DACA are in favor of the president’s executive action taken in 2012 to put this program in place without the approval from Congress. This executive order did not need congressional approval, and was within the allowed powers of the executive branch to create a program for deferred action. This does not violate the ability of Congress to determine citizenship, because DACA does not grant citizenship to recipients, merely deferred action. Furthermore, there is not sufficient evidence to prove that the DACA proSometimes executive action is a necessary step to counter red tape and bureaucracy in Congress and provide more immediate relief to those who are the victims of another person’s decisions. Courts have ruled that DACA is a constitutionally sound program, and is not in violation of the Constitution.
  • The negative:
    • The opposition to DACA are not necessarily opposed to the content of the program, but rather the means in which it was executed. The ability to extend amnesty and government benefits to undocumented immigrants is a decision that under the Constitution can only be made by Congress-not the president. Article 1, section 8 of the Constitution assigns complete authority to Congress to determine our nation’s immigration rules. Even providing administrative amnesty and access to government benefits is beyond a president’s constitutional and statutory authority is beyond a president’s duty. “Federal law does not permit the reclassification of millions of undocmuented immigrants as lawfully present and thereby make them newly eligible for a host of federal and state benefits, including work authorizations” (Supreme Court, 2016 ruling on the DAPA case). The Trump administration wind down of DACA will allow Congress time to act if it believes DACA is something that should be authorized through federal immigration law. President Obama went beyond his executive authority in creating DACA, and violated the Constitution.

DACA: What now-A Timeline

  • DACA has always been a large amount of tension surrounding the DACA policy. Under the Obama administration, there were questions of Constitutionality surrounding the program from Republican opposition. Now under the Trump administration, many Democrats are calling for the continuation of the program while many Republicans are pushing for the complete removal of the program.
  • Starting on November 6, 2018, the US DOJ sought certiorari before the Supreme Court for the second time in Regents of the University of California v. Department of Homeland Security. Two days later, the Ninth Circuit issued a decision affirming the lawfulness of the decision and ruled that the Trump termination of DACA was arbitrary and unlawful.
  • On August 31, 2018, the court in Texas v. Nielsen issued an opinion and order rejecting the plaintiff states’ motion for a preliminary injunction. This case was brought before the court to determine the lawfulness of DACA, not to challenge the Trump administration’s termination of the program. The states sought an order halting the DACA program. The court scheduled a discovery schedule for the plaintiff states and set a trial date for litigation in May 2020. The plaintiff states asked for summary judgement on February 4, 2019, and on May 1, 2019, Judge Hanen issued an order setting a hearing on the states’ summary judgement for July 8, 2019.
  • On January 25, 2019, the Second Circuit of Appeals heard argument in Batalla Vidal v. Nielsen, a case in which the US District Court for the Eastern District of New York issued an injunction ordering the government to continue processing applications for renewals from individuals who have or previously had DACA. The Court is expected to issue a decision soon.
  • On February 22nd, 2019, the US Court of Appeals for the D.C. Circuit heard oral argument in NAACP v. Trump. In that case, the US District Court for D.C. set aside part of the Department of Homeland Security memorandum that terminated DACA, and determined it to be arbitrary and capricious. A decision from the U.S. Court of Appeals for the D.C. Circuit is expected soon.
  • On May 24th, 2019, the government filed a petition for a writ of certiorari to the Supreme Court seeking review of the Fourth Circuit’s decision in Casa de Maryland v. Department of Homeland Security. The plaintiffs’ response to the petition for a writ of certiorari is due on June 24th of this year.
    • The court also has an opportunity to decide whether it will review any of the pending petitions through its upcoming conference on June 20, 2019. If the court decides not to hear these cases, they will not become enforceable until Fall 2019 or later.

Significant Cases:

  • Several upcoming cases are waiting to be heard before the Supreme Court. They have not yet made decisions as to whether or not they will review Regents, NAACP, and Batalla Vidal.
  • Regents of California v. Department of Homeland Security
    • As of June 10th, this case has been distributed to the Justices for the Conference of June 13, 2019.
    • This case focuses on 2 central issues: 1.) Whether the Department of Homeland Security’s decision to wind down the Deferred Action for Childhood Arrivals policy is judicially reviewable, and 2.) whether DHS’s decision to wind down the DACA policy is unlawful.
  • NAACP v. Trump
    • As of June 10, this case has been distributed to the Justices for the Conference on June 13, 2019
    • This case focuses on 2 central issues: 1.) Whether the Department of Homeland Security’s decision to wind down the Deferred Action for Childhood Arrivals policy is judicially reviewable, and 2.) whether DHS’s decision to wind down the DACA policy is unlawful.
  • Trustees of Princeton University v. Trump
    • Court ruled that DACA must continue to renew applications while the constitutionality of the program is being debated, and that President Trump’s attempt to stop DACA from renewing applications was unconstitutional. In addition, the Immigration and Nationality Act deprives the Court of subject-matter jurisdiction, and that the Department’s decision to rescind DACA is not subject to review under the Administrative Procedure Act.
    • This was not a Supreme Court case but was signed by John D. Bates, a District Judge on April 24, 2018.
  • Batalla Vidal v. Nielsen
    • As of June 10, this case has been distributed to the Justices for the Conference on June 13, 2019
    • This case focuses on 2 central issues: 1.) Whether the Department of Homeland Security’s decision to wind down the Deferred Action for Childhood Arrivals policy is judicially reviewable, and 2.) whether DHS’s decision to wind down the DACA policy is unlawful.
  • Texas v. Nielsen
    • As of February 4, 2019, the plaintiffs filed a motion for summary judgement on all accounts.
    • Texas, along with six other states, has sought declaratory and injunctive relief against the United States and various officials in the U.S. District Court for the Southern District of Texas. The plaintiffs argue that DACA has violated the APA and the Take Care Clause of the Constitution. They claim that DACA has granted unlawful presence to millions of immigrants without congressional authorization and sought to preliminarily enjoin the government from issuing or renewing any DACA permits in the future and to declare that DACA violated the procedural and substantive aspects of the APA. The court has not ruled on this motion and the case is ongoing.
  • Casa de Maryland v. Department of Homeland Security
    • As of June 3, 2019, the motion to expedite consideration filed by the petitioner was denied.
    • This case focuses on 2 central issues: 1.) Whether the Department of Homeland Security’s decision to wind down the Deferred Action for Childhood Arrivals policy is judicially reviewable, and 2.) whether DHS’s decision to wind down the DACA policy is unlawful.

Predictors of Court Behavior:

  • Of course, there is no guarantee how the Supreme Court will handle any political issue presented before it. The current Supreme Court Justices, (John Roberts, Neil Gorsuch, Ruth Bader Ginsburg, Sonia Sotomayor, Stephen Breyer, Clarence Thomas, Samuel Alito, Elena Kagan, and Brett Kavanaugh) will have the opportunity to review the cases listed above as we enter into the 2019-2020 term.
  • Many predict that the Supreme Court will again choose not to hear the petitioned cases until they begin the new term in October, which would allow lower circuits time to finish hearing cases before they rise to the Supreme Court. This decision would push back opening arguments to the Fall of 2019, which will coincide with the 2020 presidential election in early November.
  • Immigration will be a large topic issue for the upcoming president, and many decisions about DACA and policy surrounding immigration may be up for dramatic review in the fall and next election cycle. There are currently 26 candidates who are registered for the 2020 presidential election cycle. All 24 Democratic candidates are in support of the DACA program, and Bill Weld, President Trump’s Republican challenger, is in support of longer work visas for immigrants, but has made no formal stance on DACA to date.
  • In addition, there are 468 seats in Congress which are up for election in 2020. There are 12 Democratic and 22 Republican seats in the Senate and all 435 US House seats will be up for election. These elections will be crucial for the future of DACA

The Bottom Line:

  • DACA is a program which is being hotly contested, and is currently under extreme risk of being shut down. The program is still currently accepting renewal applications, but is not accepting new applications. Many court cases which will be heard this summer will provide a lot of ground work for what the future of the program may look like, as well as the upcoming 2020 election. Many different scenarios and timeframes are possible for DACA as different court cases enter into appeals and decisions are handed down.

Helpful Sources: