DACA

On June 18^th, 2020, the Supreme Court ruled on the future of the Deferred Action for Childhood Arrivals (DACA) program, a program for immigrants that was created under the Obama Administration in 2012. The 5-4 decision held that the Trump administration could not, at that time, rescind DACA. While the initial headlines and social media highlights expressed a triumphant tone, looking at the Court’s opinion as a whole, as well as the analysis in the following weeks, it is evident that the decision does not represent the end of the fight to protected DACA, nor does it protect the program from future attempts to dismantle it.

DACA currently has over 600,000 recipients. To qualify, a person must fulfill a number of guidelines, such as coming to the US prior to being sixteen, residing continuously in the country since June of 2007, and not having been convicted of a “felony, significant misdemeanor, or three or more misdemeanors”. While it does not provide a path to citizenship for those who qualify, it does “allow them to be ‘lawfully present’ without the threat of deportation and apply for driver’s licenses and work permits.”  President Obama attempted to expand the program in 2014 by attempting to include the parents of Americans and lawful permanent residents through DAPA. Several states sued against this, and in 2015 the Supreme Court blocked the expansion as well.

More recently, DACA faced threats from the Trump Administration. In 2017, Jeff Sessions, the Attorney General, “announced that President Donald Trump’s administration would end DACA.”  Then-secretary of the Department of Homeland Security, Elaine C. Duke wrote a memo rescinding Obama’s DACA memo, using the Supreme Court, the Fifth Circuit Court’s rulings, and Sessions’ letter to “declare that the DACA program should be terminated.”  

It was in this context that the Supreme Court reviewed the Trump Administration’s attempt to dismantle DACA. In the Supreme Court’s opinion, Justice Roberts wrote that “[t]he dispute before the Court is not whether DHS may rescind DACA. All parties agree that it may.” Justice Roberts explained that Sessions “neither addressed the forbearance policy at the heart of DACA, nor compelled DHS to abandon that policy.” Perhaps most disturbingly, Roberts stated that the correct action was to “remand to DHS so that it may consider the policy anew.” In saying this, Roberts is implying that the consequences of the decisions lay in that the Department of Homeland Security must reconsider DACA- and perhaps find what the Court may consider to be a more legitimate way to rescind it. 

Taking into account the other justices’ opinions also provides evidence for why the fight for DACA is not over. Justice Thomas claimed that the Trump Administration attempted to dismantle DACA in the same way that Obama made it: “unilaterally, and through a mere memorandum”. Despite Justice Roberts essentially pointing to the administrative failure of the Trump Administration’s attempt to rescind DACA, Justice Thomas says “this is anything but a standard administrative law case.” Justice Thomas also claims that the decision of the Court is “an effort to avoid a politically controversial but legally correct decision.” Justice Kavanaugh also dissented, saying that “[t]hese young immigrants do not have legal status in the United States under statutory law.” He also included the reminder “that the Executive Branch possesses the legal authority to rescind DACA and to resume pre-DACA enforcement of the immigration laws enacted by Congress.” 

What the Court’s majority and dissenting opinions show is that the Court truly did not rule on the basis of a permanent protection for DACA. The Court, not just the dissenters, agree that the Trump Administration has the power to dismantle DACA. And as evidenced by Thomas’ opinion, the idea that the administration tried to rescind DACA improperly is still debatable to some. Kavanaugh also advanced the idea that the participants in DACA do not have a right to stay in the United States, further solidifying the idea that the justices do not believe DACA has any real right to remain.

While the opinions of the dissenters may be expected, Roberts’ opinion still advances a dangerous idea for the future of DACA. In the Court’s opinion, Roberts includes the accomplishments of DACA recipients – such as starting businesses and getting married, as well as their financial contributions. He also highlights the cost to hiring and replacing the recipients, noting it to be $6.3 billion. While this may have been done with good intentions, it further reinforces the idea that the DACA recipients must be evaluated based on their contributions to society. It shifts the focus away from their humanity, looking at the young immigrants as employees and financial figures rather than actual people who have made the United States their home and have little ties to their native countries. Combined with the relatively weak language protecting DACA, it frames the issue of the protection of DACA as one that would require a stronger Administration to break, one that could simply gave the Supreme Court adequate proceedings and a solid reason for rescinding the program.

This lack of protection has very real consequences. In an article by Jessie Higgins published in “Charlottesville Tomorrow,” Higgins details the experience of one teenager who was confused by the decision, having waited six years to finally be eligible to qualify for DACA. Higgins explains that the U.S Citizenship and Immigration Services released a statement saying that the decision “merely delays the President’s lawful ability to end” DACA, which it calls “illegal.” The decision does not even offer immediate protections to individuals, as the article notes that the agency has not started processing new DACA applications.

The recent decision on DACA is a positive insofar as it blocks the most current threat to the program from the Trump Administration. However, it is a far cry from a permanent, institutional solution to protecting DACA recipients. The Supreme Court did not make the decision out of believing the program to be sound, nor do they believe the Executive Branch does not have the power to dismantle it at some point in the future. While social media and major news sources may have had cause for largely positive headlines about the decision, it is important to recognize not just the limits of the decision, but how it could potentially negatively impact DACA in the future. 

Sabrina Rodriguez