Recently, a federal district judge blocked the Deferred Action for Childhood Arrivals program as unlawful — barring the Biden administration from approving new applications.
The decision means hundreds of thousands of “Dreamers,” or immigrants who were brought to the U.S. illegally as children, could potentially once again find their lives upended, as they suddenly face the threat of deportation.
No, you haven’t gone back in time. It’s just that legal challenges to the DACA program are still going on, almost 10 years after the Obama administration acted unilaterally to defer deportation for thousands of young Dreamers and 20 years since the DREAM Act was first introduced in Congress.
How did we end up back here?
When the Supreme Court ruled last year that the Trump administration had taken a flawed approach, violating the Administrative Procedure Act, in its attempt to cancel DACA, many people regarded questions about the legality of the program as moot. If the court elected not to cancel DACA outright, the thinking went, then it ought to be considered legal.
But the Supreme Court decision did not settle the separate case of Texas v. United States, which was first filed in 2018. The plaintiffs there had sought a ruling that DACA was unlawful, and the case was brought before Judge Andrew Hanen of the U.S. District Court for the Southern District of Texas — the same judge who blocked the DACA program earlier this month. That litigation was effectively suspended in recognition of the fact that the Supreme Court might resolve the matter. But the nation’s highest court declined to do so — instead issuing a ruling that left the question of DACA’s legality an open one.
In an interim 2018 ruling, Judge Hanen had highlighted an obvious solution. While he expressed skepticism about the legality of DACA, he also wrote that it was “a popular program and one that Congress should consider saving. … If the nation truly wants to have a DACA program, it is up to Congress to say so.”
What a novel idea.
The reality is that this has been the obvious solution to the challenges faced by Dreamers since the DREAM Act was first introduced by Sens. Richard Durbin, D-Ill., and Orrin Hatch, R-Utah, more than 20 years ago. But rather than reach across partisan lines to pass this legislation, members of Congress from both parties have been content to let the White House act unilaterally. While that has permitted them to avoid a vote that would inevitably disappoint some constituents, it’s also precisely why this issue remains unresolved and is still being litigated 20 years after it first arose.
It’s past time for Congress to act. It is true that the Supreme Court allowed DACA to stand, and Judge Hanen’s recent ruling allowed current DACA recipients to maintain their ability to remain enrolled in the program — for now.
But while this temporary protection is welcome, it doesn’t solve the problem.
Right now, Dreamers are living, working and studying in communities across America. They fill critical roles, with almost half of them acting as “essential workers” during the early days of the COVID-19 pandemic, including 30,000 health care professionals alone. Brought here as children, they know no other country as home. In fact, many speak no other language except English. Furthermore, 23 percent of Dreamers eligible for legalization under the Dream Act of 2021 have U.S. citizen children, and 12 percent have U.S. citizen spouses. But unless Congress passes legislation, there is no way existing pathway for them to earn a durable legal status.
Without that certainty, how can they plan for the future? Without knowing whether they may remain in the U.S. legally for more than a few months, how can they launch a business, or buy a home, or start a family, or commit to a college education or advanced degree? Even for those who have been in the program for years, bureaucratic complications are costing thousands of Dreamers the opportunity to work legally, obtain health insurance and build a future.
And even after the Supreme Court seemed to “settle” the question, the reality is that litigation could still upend their lives. All that’s without even considering the possibility that a future president could cancel DACA through a process that passes constitutional muster. What would Dreamers do then?
There’s no getting around what has always been true, since even before the Obama administration’s decision to act unilaterally and usurp the legislative branch: Congress must act.
If not, communities across the country will continue to miss out on the full contributions of young people who want to continue contributing and building their lives here. There’s no way that any program established through unilateral executive action by the executive can provide the certainty needed to make that happen. It’s on Congress to pass a permanent legislative solution once and for all, rather than using this issue to their benefit for yet another election cycle.
Kevin Hernandez is the policy director of The LIBRE Initiative, an organization dedicated to advancing the principles of economic freedom to empower the U.S. Hispanic community to thrive and contribute to a more prosperous America.