Even before President Donald Trump stood in the Rose Garden and unveiled his administration’s new plan for immigration on Thursday, news outlets had reported that a major aspect of immigration policy would be absent from the announcement: the Deferred Action for Childhood Arrivals policy.
White House Press Secretary Sarah Huckabee Sanders told reporters that DACA was left out of the new plan “on purpose”: “Every single time we have put forward or anyone else has put forward any type of immigration plan and it’s included DACA, it’s failed. It’s a divisive thing,” Sanders told reporters on Thursday, according to the Washington Post.
DACA, a legacy of the Obama administration, uses executive action to protect a group of immigrants—who arrived in the country as children—from deportation. After enrolling in the program, DACA recipients (known as Dreamers), gained the ability to work, attend school, and contribute to their communities, all without fear of arrest—until Trump announced an end to the program in September of 2017.
A quick succession of court cases blocked Trump’s attempt to axe DACA. Though the program no longer accepts new applicants, current recipients can still maintain and renew their status.
But, as I reported for Pacific Standard last year, that doesn’t mean DACA’s been saved. Without action by the president or Congress, the program is unlikely to survive through the year. The major threat to the program comes from a district judge in Texas, who is currently overseeing a lawsuit questioning the constitutionality of DACA:
In Texas, U.S. District Judge Andrew Hanen, one of the most notoriously anti-immigrant judges in the country—under President Barack Obama, Hanen struck down parts of DACA and prohibited a program that would have protected undocumented parents of U.S. citizens—is currently hearing Texas v. Nielsen, a case that could end DACA. Unlike the court cases in California and other states, Texas v. Nielsen does not consider whether or not the Trump administration has a right to end DACA, but instead considers whether or not DACA is constitutional in the first place. … Though Hanen surprised legal observers by declining to issue a preliminary injunction suspending DACA, he has given strong indications that he intends to rule DACA illegal. “If the nation truly wants a DACA program it is up to Congress to say so,” Hanen said in August.
Hanen will likely issue a final decision declaring DACA unconstitutional later this year. That decision would throw the country into a bizarre legal scenario: Judges in California, New York, and Washington, D.C., have declared it illegal to end DACA, but Hanen could rule it’s illegal to continue DACA.
The contradiction would likely force the Supreme Court to add the case to its docket for the fall. According to Araceli Martínez-Olguín, staff attorney at the National Immigration Law Center, that might be a good thing for the program’s longevity. “That means that an actual decision would likely not come until spring or summer of 2020,” Martínez-Olguín told me in January, when the Supreme Court initially declined to take up the DACA question.
However, with five conservatives on the bench, it’s possible that the court could rule to end DACA. That means, without action by Congress, DACA remains in a tenuous balance. And with the program absent from Trump’s immigration plan, there’s currently no indication that the Republican-controlled Senate and Democrat-controlled House of Representatives are close to arriving at a compromise to preserve DACA and protect Dreamers.
