This column was originally published by Truthdig.com
President Trump, our nativist in chief, has decided to end the Obama-era Deferred Action for Childhood Arrivals (DACA) program that has protected thousands of young unauthorized immigrants from deportation. According to Politico, the decision was made Sunday afternoon. Enforcement of the program’s termination, however, will be delayed by six months to give Congress one last unlikely chance to enact immigration reform.
For the beneficiaries of the program—often referred to as “Dreamers” after the ill-fated Development, Relief, and Education for Alien Minors Act that would have given them a path to citizenship but was never passed—Trump’s action has transformed the dream of living openly and productively in America into a nightmare. Absent a Congressional turnaround, they will be forced to dwell in the shadows, in constant fear of arrest and expulsion.
There is little question that Trump has the authority to scrap DACA. Legally speaking, even before Trump ascended to the presidency behind a wave of xenophobia, DACA was on shaky grounds because it, like Trump’s rescission, was a form of executive action rather than an act of Congress.
DACA was implemented because Congress was unwilling to ratify the DREAM Act, either as a stand-alone measure or as part of more comprehensive legislation. Although a version of the act passed the House in 2010, the bill never made it out of the Senate.
In the face of Congressional gridlock, Obama ordered then-Secretary of Homeland Security Janet Napolitano to introduce the program by way of a formal memorandum, which was published on June 12, 2012. Obama followed up on Napolitano’s memo three days later with an official Rose Garden announcement of the program.
In essence, DACA was designed as an exercise of prosecutorial discretion aimed at reordering the nation’s deportation priorities. Under the program, the Department of Homeland Security (DHS)—the cabinet-level department that sets deportation policies and oversees the operations of both the Border Patrol and U.S. Immigration and Customs Enforcement (ICE)—offered renewable two-year periods of relief from deportation and work authorization to a large class of young people who had been brought into the U.S. as children without the intent to violate American law.
To be eligible for the program, applicants had to fill out paperwork, pass a federal background check and meet five basic criteria, showing that they:
1. Had come to the U.S. under age 16. 2. Had continuously resided here since June 15, 2007. 3. Were either currently in school, had graduated from high school, obtained a GED, or had been honorably discharged from military service. 4. Had not been convicted of a felony or serious misdemeanor (for example, domestic violence, drug trafficking or DUIs), or multiple minor offenses, and did not pose a risk to national security. 5. Were under age 30 at the time of application.
According to the Pew Research Center, 1.1 million people were potentially eligible for DACA. Of this total, nearly 790,000 applied and were approved for the program. Roughly 379,000 DACA recipients live in California.
From the inception of his presidential bid to this day, Trump has made border security and mass deportations a cornerstone of his domestic agenda. Still, until recently, he had remained equivocal about DACA, saying only last week that his administration “loves Dreamers.”
The decision to end DACA, however, was taken in response to a threat of litigation made by Texas Attorney General Ken Paxton. In a June 29 letter addressed to Attorney General Jeff Sessions, written for himself and the attorneys general of nine other states plus Idaho Gov. C.L. Otter, Paxton set a Sept. 5 deadline for Trump to rescind DACA and pledge not to renew the program in the future, or face a federal lawsuit.
A longtime Tea Party activist, Paxton was elected as Texas attorney general in November 2014, and was sworn into office the following January. Foremost among his accomplishments as the Lone Star State’s top law-enforcement officer is the victory he achieved in the case of United States v. Texas, which invalidated the Obama administration’s Deferred Action for Parents of Americans (DAPA) program and an expanded version of DACA.
Adopted by yet another DHS memo released in November 2014, DAPA sought to defer the deportation of an estimated 4.3 million undocumented parents of U.S. citizens and lawful permanent residents. The expanded version of DACA would have extended the eligibility cut-off date by which a DACA applicant must have entered the U.S.—from 2007 to January 1, 2010. The expanded version also would have allowed for three-year renewable work permits.
Filed on behalf of Texas and 25 other states, the complaint in U.S. v. Texas alleged that DAPA and expanded DACA were unlawful because President Obama had exceeded his executive authority in creating them without congressional approval, and because the programs ran afoul of technical provisions contained in the federal Administrative Procedures Act. The lawsuit did not contest the original DACA program.
The case came before United States District Court Judge Andrew S. Hanen, an appointee of George W. Bush, who sits in Brownsville, Texas. A fervent critic of Obama’s immigration policies, Hanen issued a nationwide injunction against both programs in February 2015. In November 2015, a three-judge panel of the 5th Circuit Court of Appeals affirmed Hanen’s ruling by a 2-1 vote.
The Obama administration appealed to the Supreme Court, which heard oral arguments in April 2016, two months after the death of Associate Justice Antonin Scalia. With Obama’s nomination of Merrick Garland as Scalia’s successor stymied in the Senate and the court left short-handed, the panel divided 4-4 in the case. Unable to reach a ruling on the merits, the court issued a decision on June 23, consisting of a single sentence, which stated: “The judgment [of the 5th Circuit] is affirmed by an equally divided court.” In so doing, the Supreme Court effectively killed both DAPA and expanded DACA.
In his letter to Sessions, Paxton warned that unless Trump repealed the original DACA program, he would amend the original complaint filed in the U.S. v. Texas case—which has not yet been formally closed—to include a challenge to the original program. The amended complaint, moreover, would be lodged with Judge Hanen.
Now, Paxton won’t have to bother. Trump has caved, fulfilling a central campaign promise to his white-nationalist base.
Even if Trump had for some unexpected reason—a pang of conscience, a nudge from Ivanka, an enlightened sense of political self-interest or even because of a clerical error—defied Paxton and forced him to go to court, Hanen likely would have handed Paxton another win.
Had Paxton sued, the task of defending DACA would have been assigned to Sessions’ Justice Department. It’s extremely doubtful that Sessions would have advanced any compelling legal arguments to support the program.
When he was a Republican senator from Alabama, Sessions opposed immigration reform, and during his Senate confirmation hearings to become attorney general in January, he testified that in his view, DACA’s constitutionality “was very questionable.” As Rep. Luis V. Gutiérrez, D-Ill., a leader of the Congressional Hispanic Caucus, told the Washington Post in a July interview, “If you’re going to count on Jeff Sessions to save DACA, then DACA is ended.”
It’s also virtually certain that if Paxton’s new case ever reached the Supreme Court, with Scalia-clone Neil Gorsuch now on the bench, the high court would vote 5-4 to shut down the program.
Although Gorsuch only took his seat on the court in April, he has moved quickly to establish himself as an uber-conservative. According to the Scotusblog.com website, in every case he reviewed on the merits from April to the close of the court’s last term at the end of June, Gorsuch voted in agreement with Clarence Thomas, long considered the most right-wing outlier on the tribunal.
Of particular note, Gorsuch, together with Justice Samuel Alito, joined Thomas’ concurring opinion in the Muslim travel ban case that the Supreme Court considered in late June. In a unanimous, unsigned (“per curiam”) ruling, the court temporarily reinstated part of the ban and set the case for further review on the merits in early October. In their separate concurrence, Thomas, Gorsuch and Alito argued that the entire ban should be upheld.
Immigrants’ rights lawyers will no doubt file complaints of their own in federal court to defend and preserve DACA. At best, however, their efforts will only delay the program’s ultimate demise.
In the absence of a reliable legal remedy, the struggle to save DACA and the Dreamers will move again to the political arena. Given the growing clout of Latino voters, there is some sliver of optimism that the GOP will offer some sort of legislative compromise.
Before Trump decided on repeal, both House speaker Paul Ryan, R-WI, and Orrin Hatch, R-Utah, the president pro tem of the Senate, had urged him not to eliminate DACA. In addition, a bipartisan group of legislators in both chambers have thrown their support behind the Bridge Act, which would provide legal status for DACA recipients.
For the progressive left—as I have written before in this column about immigration generally—defending DACA offers an opportunity to go beyond identity politics and Clinton-style neoliberalism to advocate not only for the Bridge Act and humane immigration policies, but also to press for fair labor standards for all working people, regardless of their current documented status.
That’s a tall order, to be sure, with no guarantee of success. In the meantime, the Dreamers will be left in a living nightmare.