By Daniel Costa, Economic Policy Institute
Almost eight years to the day after President Obama announced his Deferred Action for Childhood Arrivals initiative, better known as DACA, the Supreme Court of the United States (SCOTUS) has issued a decision in Department of Homeland Security et. al. v Regents of the University of California et.al.—the litigation concerning whether the Trump administration’s attempt to end DACA was carried out lawfully. In a stunning rebuke to the Trump administration’s ham-handed rescission of DACA, the highest court in the land—which has a majority of staunchly conservative justices—ruled 5-4 that the Trump administration failed to comply with the requirements of the Administrative Procedure Act (APA) when ending DACA. In doing so, SCOTUS upheld the findings of three lower courts that also determined the APA had not been complied with, and which had allowed DACA to remain in effect via a nationwide injunction while the legal challenges continued. As a result, DACA will continue to exist, for now.
The immediate practical impact of the SCOTUS ruling on DACA cannot be overstated: It means 650,000 undocumented U.S. residents who were brought to the United States as children won’t lose their current protection from deportation. They can continue to attend school and work lawfully, and can keep contributing to their communities and local economies. The DACA initiative didn’t provide a permanent legal status, only a temporary reprieve from deportation that can be renewed every two years, along with the ability to obtain a Social Security Number and an employment authorization document.
Nevertheless, this stopgap measure that DACA represents, that keeps immigrants from being deported to a country they can barely remember, has resulted in significant economic and educational achievements for DACA recipients. Being able to work lawfully and without the specter of deportation looming over them means DACA recipients are able to have basic labor rights, which in turn have translated into wage gains. How big are the wage gains? According to a study and survey conducted by Professor Tom Wong and United We Dream, the National Immigration Law Center, and the Center for American Progress, the hourly wages earned by DACA recipients increased 86% since they received DACA, from $10.46 per hour to $19.45 per hour. The wage gains were even higher for DACA recipients who are 25 and older—128%—from $10.64 per hour to $23.70. Wage gains of this magnitude can literally be the difference between being in poverty and entering the middle class.
By this measure alone, DACA has been one of the most successful immigrant integration programs ever, rivaled only by the legalization for unauthorized immigrants that was passed into law as part of the Immigration Reform and Control Act of 1986, where approximately 2.7 million immigrants were legalized and allowed to adjust to lawful permanent resident status.
Without a doubt, SCOTUS’s decision on DACA is a massive victory for the immigrants’ rights movement and should be celebrated. Nevertheless, the excitement and relief collectively felt by DACA recipients and the rest of the immigrants’ rights community must quickly be tempered by the reality of what lies ahead.
While DACA recipients have “deferred action,” they are not permanent residents or citizens, and have no “legal” immigration status. When the Department of Homeland Security (DHS) exercises deferred action with respect to someone who is technically removable (i.e. deportable) from the United States, the agency is not providing that person with a legal status— they are simply authorizing their presence temporarily. In other words, through deferred action, DHS is simply saying to an unauthorized immigrant that they promise not to remove them until further notice, and that they’re at the bottom of the priority list for deportation. Someone with deferred action is still, technically, an unauthorized immigrant.
That’s why it’s important to remember what this SCOTUS decision did not do: It did not rule that DACA is lawful and that the Trump administration may not end it; it simply ruled that DACA was not ended appropriately, and that DHS has to start from scratch if it wants to do it. In fact, it’s clear that the Trump administration has the requisite legal authority to end DACA—it just has to do so properly, according to the requirements laid out in the APA.
Let’s hope this SCOTUS decision isn’t a fleeting victory. The Trump administration could get started today on a new, more legally sound, process to end DACA, although it would likely still take months to accomplish. It is telling however, that Trump didn’t do this already. In fact, the administration could’ve gone back to the drawing board and restarted the ending of DACA in a lawful manner at any point while their rescission of DACA was being litigated at the district or circuit court levels. In doing so, the Trump administration would have had to admit that it erred in its original attempt to end DACA—but it likely would’ve worked if they truly wanted to end DACA.
The fact that the Trump administration didn’t do this suggests that they kept DACA alive for political reasons. One can reasonably speculate that they kept DACA alive in the hopes that they would be able to negotiate a political deal that would extract concessions from members of Congress in exchange for legal status for DACA recipients—either while the litigation was ongoing or soon after SCOTUS ruled in Trump’s favor—which would’ve left DACA recipients vulnerable to removal, and provided Trump with leverage over the many legislators who are in favor of protecting DACA recipients. It’s no secret that Trump and his advisor Stephen Miller are searching for a legislative vehicle to implement their immigration policy priorities permanently, which include a vast increase in immigration enforcement, further dismantling the asylum system, and eliminating green cards for extended family and the diversity visa program. Trump hoped to use DACA and the lives of 650,000 immigrants as a bargaining chip; luckily, the Supreme Court threw his administration an unexpected curve ball.
Given his vehement animosity towards immigrants, if Trump wins reelection in November, it is almost certain that DACA won’t exist for much longer. The only way our “DACAmented” brothers and sisters will be free and protected is if Congress acts—and it should do so immediately—by passing legislation that provides an immediate path to citizenship for DACA recipients, as well as for other Dreamers who were brought to the United States as children.