On September 5, 2017, Attorney General Jeff Sessions tried to make it as clear as possible: the administration of Donald Trump would be ending Deferred Action for Childhood Arrivals, the Barack Obama-era program that allows about 700,000 young, undocumented immigrants known as Dreamers to legally remain in the U.S.
Arguing that the Obama policy was unconstitutional, Sessions said that “the compassionate thing is to end the lawlessness, enforce our laws, and, if Congress chooses to make changes to those laws, to do so through the process set forth by our Founders in a way that advances the interest of the nation.”
The administration would give Congress six months to pass a legislation to enshrine DACA into law. If not, on March 5, DACA would end — subjecting hundreds of thousands of young immigrants to deportation.
The last six months have seen legislative battles, incendiary statements out of the White House, and a government shutdown over DACA. One thing it has not seen: a definitive end to the DACA program.
Even though Congress failed to pass a legislative solution to the problem, federal judges have ruled in favor of legal challenges to Trump’s move. With the Supreme Court declining to take up appeals until the process plays out more in the lower courts, DACA effectively remains in place — for now.
But a lot could happen, both in the courts and in the Capitol, and the path forward is as vexing as complex as what happened over the last six months. Confused? You’ve got every right to be.
Why does the Trump administration believe it can end DACA?
They’ve argued that the establishment of DACA was outside the scope of the executive branch’s powers — a point Republican politicians and some legal scholars have been making since the program began.
Barack Obama moved to establish DACA in 2012, after Congress failed to pass the so-called DREAM Act, which would have enshrined protections for young, undocumented immigrants into law. That legislation failed in the Senate in 2010 after a close vote, and it prompted Obama to use the power of his pen to do what lawmakers couldn’t.
Under the program Obama implemented, anyone brought to the U.S. at age 16 or younger, and before 2007, could apply for DACA, and receive permission to live, work, and study in the U.S. on a renewable, two-year basis. By the time Sessions appeared to make his announcement, 689,000 young immigrants had DACA status, while an estimated 1.3 million total people are eligible for DACA.
Sessions and others have argued that Obama’s move was unconstitutional, in that it violated the separation of powers between the executive and legislative branches outlined by the founders.
“This policy was implemented unilaterally to great controversy and legal concern after Congress rejected legislative proposals to extend similar benefits on numerous occasions to this same group of illegal aliens,” Sessions said in September. “The executive branch, through DACA, deliberately sought to achieve what the legislative branch specifically refused to authorize on multiple occasions. Such an open-ended circumvention of immigration laws was an unconstitutional exercise of authority by the Executive Branch.”
The president and others have claimed Obama himself said that he didn’t have the authority to establish DACA, which is not true, though Obama frequently acknowledged the limitations of the executive branch in acting on immigration.
In justifying DACA, Obama emphasized it was temporary and did not amount to a path to citizenship for Dreamers. “This is a temporary stopgap measure that lets us focus our resources wisely while giving a degree of relief and hope to talented, driven, patriotic young people,” he said.
Regardless, the Trump administration’s message was clear: if something is going to get done on DACA, it has to get done through Congress. And if Congress can’t agree, the program must end.
So, what did Congress do?
What Congress does best! Nothing. (After arguing and hand-wringing a lot, of course.)
With fall of 2017 consumed by the Republicans’ tax cut push, Congress returned for the new year with immigration on the agenda. In January, the president held a loose back-and-forth roundtable at the White House on immigration, in which he backed congressional Democrats’ ideas and promised to do something “great” on DACA.
But a few days later, the White House discouraged congressional action by taking a hard-line tack at a key meeting, where the president uttered a now-infamous remark about immigrants from “shithole” countries. After that, as Congress considered short-term spending legislation to keep the government open, Democrats said they wouldn’t support any so-called continuing resolution if it didn’t include something to address the status of the Dreamers.
Republican leaders, who needed Democratic votes to pass spending legislation, didn’t include anything on DACA. Congressional Democrats held the line and moved to vote no on the bill, shutting down the government on January 20. The GOP, content to blame the shutdown on Democrats, did not offer anything on DACA to put an end to the stalemate.
Instead, three days later, the shutdown ended when enough Senate Democrats were enticed by assurances from Majority Leader Mitch McConnell that the upper chamber would consider immigration legislation at some point.
Activists raged at the 33 Democrats who voted to reopen the government, arguing they lost the leverage needed to force a resolution for the Dreamers. To this point, their fears have been confirmed: though McConnell made good on his promise to consider immigration legislation, the three bills put before the Senate — all of which offered some DACA fix — all failed to gain the 60 votes necessary to proceed.
A compromise brokered by two dozen Republican and Democratic senators, which offered a 12-year path to citizenship to anyone eligible for DACA along with $25 billion for “border security” measures, was seen as the best shot at accomplishing something. But it fell short of the 60-vote threshold by six votes.
Meanwhile, in the House of Representatives, Speaker Paul Ryan has declined to allow any DACA-related legislation to come to the floor for a vote.
The failure of the Senate and lack of interest in the House have made it a lot less likely that Congress will pass legislation enshrining DACA into law — the one thing the administration said would save the program, and keep the 700,000 Dreamers in the country.
But it’s after March 5, and no one’s talking about the end of DACA. What gives?
While Congress was busy shutting down the government and failing to reach a compromise, the federal courts were busy considering legal challenges to the administration’s September move.
In California, five Dreamers sued the Department of Homeland Security, arguing that the Trump administration violated their due process rights by summarily canceling a program the federal government had put into place under a previous administration.
In January, a federal district court judge in San Francisco, William Alsup, found that argument persuasive, and issued an injunction ordering the government to resume processing renewals of legal status for DACA recipients, which the administration stopped doing in September when it announced the program’s termination. (Alsup did not order the government to process new DACA applications.)
In his ruling, Alsup said the federal government’s decision to end DACA was arbitrary. “Arbitrary” and “capricious” policymaking by federal government agencies is prohibited under the Administrative Procedure Act, a critical statute that frequently comes into play when government actions are question in the courts.
Alsup also said terminating DACA was not based in the public interest. To underscore that point, Alsup cited a tweet from Trump himself, from September, in which POTUS asked his followers, “Does anybody really want to throw out good, educated and accomplished young people who have jobs, some servicing in the military? Really!”
The administration moved to appeal that decision, but in February, another federal district court judge — this time, in New York City — came to the same conclusion. Judge Nicholas G. Garaufis, who has previously criticized Trump and Sessions from the bench, said that ending DACA would have “profound and irreversible effects.”
Those two injunctions applied nationwide, and put a hold on the termination of DACA. In challenging those rulings, the Trump administration took the unusual step of taking its appeal directly to the U.S. Supreme Court, bypassing the federal circuit court of appeals. The high court very rarely takes a case if appellate courts haven’t issued a ruling, and this time was no exception: in February, they responded to the administration’s request simply: “It is assumed the court of appeals will act expeditiously to decide this case.”
So is DACA basically upheld?
Not quite. The Supreme Court is just staying out of it until an appellate court issues a ruling. And the nature of the district court injunctions — that those who already have DACA can renew it, but those who don’t can’t get it — means the program is in a kind of limbo.
Prior to those injunctions, roughly 100 people a day were losing DACA status, possibly permanently, according to Judge Garaufis’ ruling. Now, the government is required to process DACA renewals that have been, and will be, submitted, as long as the injunctions hold.
According to immigrant legal advocates, this is a welcome development, but it’s still one that pales to the alternative: a real, long-term solution passed by Congress.
Kara Lynum, an immigration lawyer in St. Paul, says that “People are grateful to have the opportunity to submit renewals, but it’s not really a long-term solution, and it hasn’t really provided the level of confidence the DREAM Act would have provided.”
John Keller, who runs the Immigrant Law Center of Minnesota and also works on behalf of DACA recipients, says there’s also money to consider — DACA renewal applications cost $495 — and some immigrants are fearful the program could end before their applications are processed.
There’s also a fear that stems from the administration’s aggressive approach toward undocumented immigrants, Keller adds. “Maybe you’ve moved, and you’re sending your new address to this administration,” he says. “Are you really safe? Is this administration really not going to go after you if Donald Trump changes his mind or gets mad? There’s an uncertainty that’s inherent with this guy in the White House… People are unsure what to do.”
Many lawyers are recommending that many DACA recipients submit renewals now, even if their applications have recently been renewed, so they can secure legal status for as long as they can.
When will Dreamers know their final status?
However the appellate courts rule — a challenge to Alsup’s decision is currently at the 9th Circuit Court of Appeals — the decision is likely to be appealed by either side. If that appeal goes to the Supreme Court, it’s possible a final ruling on DACA might not come until next year.
But lawyers like Keller are cautioning Dreamers that the injunctions issued by the California and New York judges may not hold until then. “What we feel compelled to explain to clients, and to the public when we talk about it, is there is no absolute guarantee that the injunctions stay in place throughout the appeal process,” Keller told MinnPost.
“We have to hedge our bets, and advise people there is a possibility the injunctions could be lifted. It’s not as simplistic as, only the Supreme Court can lift it.”
Lynum says that “we’re in kind of uncharted territory here, which is frustrating for us as attorneys to give advice in those situations.” She added that her clients are confused and frustrated with how the issue is being addressed. “We’re trying to explain to clients how federal appellate litigation works.”
Beyond deciding when to renew DACA status, Lynum says the current legal limbo poses broader dilemmas for Dreamers that deepen the frustration. “Should I buy a house? Should I enroll in another semester of college? The answer still is, what’s your tolerance for risk? We don’t know what’s going to happen, even tomorrow.”
Can Congress still act?
Haha. Good one! Congress, of course, can act whenever it likes, but the failure of any immigration bill to get the 60 votes required in the Senate has dimmed prospects lawmakers will act.
That is, unless, Democrats decide to make use of another, looming deadline: on March 23, government funding runs out. Congress is expected to approve a so-called omnibus bill that will provide government funding through the end of this fiscal year. Many Democrats are calling for that omnibus to include protections for the Dreamers, particularly in the House, where 84 Democrats signed a letter to both parties’ leaders urging them to do that.
Rep. Keith Ellison said in a statement that the current crisis is one that Trump and the GOP created, “yet Speaker Ryan has refused to so much as allow a vote on any solution. This week, I hope my colleagues will finally do right by Dreamers, who contribute so much to our society but are already losing the right to stay and work in their communities here in the United States.”
But it doesn’t seem like Democrats are willing to risk a shutdown over DACA again. House Minority Whip Steny Hoyer said that no contentious “riders” should be placed on this week’s omnibus. Other Democrats are saying it is the job of pro-DACA Republicans to put pressure on their leaders for a vote.
In the Senate, Sen. Amy Klobuchar — a leading member of the so-called “Common Sense” Caucus that negotiated a way out of the shutdown in January — says she is still focused on a bipartisan solution for Dreamers.
“Eight Republican senators voted in favor of a bipartisan compromise to help the 800,000 DREAMers — people like Senator [Mike] Rounds of South Dakota and Senator Johnny Isakson of Georgia — and have committed on the record to keep working to get this done,” Klobuchar said in a statement to MinnPost, referencing the “Common Sense” compromise bill that fell short in February. “So I am going to continue working with my colleagues on both sides of the aisle to find a solution to protect the DREAMers.”
Is anyone actually optimistic Congress will actually do something?
Not really. Immigrant advocates say frustration is high among Dreamers and their allies, and faith in politicians of both parties is at a low ebb.
“The highest level of frustration is directed at the president, because he stopped the program in the first place without a plan,” Keller says. But he added that there’s frustration at Democrats, particularly those in the Senate. “The sort of pretending like you’re going to fight for the program when the Senate Democrats shut down the government for a weekend, only to cave in the activists’ perception, feels like they were kind of thrown under the bus one more time.”
Lynum says that many of her clients that Washington won’t do anything until next year — if Democrats take control of Congress in the November midterms.
“I think everyone understands now that they have to hope there’s a change in the congressional makeup in the 2018 election to get anything going with this,” she says. “My clients do seem resigned.”