Can DACA Outlive Trump’s First Term?
In September of 2017, President Donald Trump threw hundreds of thousands of immigrants into legal limbo when he moved to end the Deferred Action for Childhood Arrivals program. The Obama-era policy protected undocumented immigrants who arrived in the country as children, known as Dreamers, granting them clemency and work permits.
Now, House Democrats—and some House Republicans—stand poised to pass a bill that would protect Dreamers. But no one expects the bill, called the Dream and Promise Act, to get anywhere in the Republican-controlled Senate, much less gain a signature from Trump.
Since the president moved to end the program, a collection of federal court decisions have prevented his administration from undoing the major provisions of DACA (although the program is no longer accepting new applicants). But even with these court victories, DACA’s legal status remains tenuous. As I wrote in November, the program is far from saved:
“I see a lot of people call [these court decision] victories,” says Indira Marquez Robles, a DACA recipient attending university in Atlanta. “In a way, I do see it as a victory. But with these victories, there’s no real change. I always feel like it’s more like just holding on.”
Legal experts tend to agree with Marquez Robles. Though DACA has scored a string of legal successes since the Trump administration attempted to end the program, these have done little to protect the program.
In general, legal experts believe that congressional action is the only thing that will protect the DACA program. But the Dream and Promise Act is largely symbolic: Without offering concessions on immigration policy to the president or congressional Republicans, any bill protecting Dreamers is unlikely to become law.
Things could change for Dreamers if a Democrat makes it to the White House in the next election. But it’s not clear whether DACA will last that long. The program’s immediate future will be decided by two courts: a federal court in Texas and the Supreme Court.
[A] lawsuit making its way through a district court in Texas could spell the beginning of the end of the program. In Houston, the conservative Judge Andrew Hanen (who already struck down parts of President Barack Obama‘s original DACA plan) has a case in front of him that questions not Trump‘s ability to repeal DACA, but rather the constitutionality of the program itself. Though Hanen disappointed conservatives by declining to issue a preliminary injunction halting DACA, the judge has indicated that he intends to ultimately rule against the program—a decision that will likely come later this year.
Hanen’s potential ruling against DACA would place the country in a bizarre legal scenario, in which some judges will have declared it illegal for Trump to undo DACA, and another judge will have ruled that it’s illegal for the government to continue DACA. This means that the Supreme Court will likely take up the case in the fall—and, with five conservative justices on the bench, it’s not unlikely that the program will meet its demise in the nation’s highest court.
But will the Supreme Court issue a final decision before the 2020 election? The earliest the court could add a DACA case to its docket is fall of this year. Normally, that would mean we wouldn’t get a final decision until spring or summer of 2020—but in the scenario in which there are conflicting court orders, the court could accelerate its decision-making, or issue a preliminary injunction ending DACA. And even if the Supreme Court takes its time and issues a decision in summer of 2020, that would still leave about half a year between the end of DACA and the start of the next presidential term—a term that could, of course, see Trump remain in office.