DACA: The Questioning of An Immigration Policy’s Legality And Its Implications On American Society and Economy

By Nicole Velez ‘27

Since the inception of an independent United States in 1776, immigration and its regulation have been a constant debate fueled by both dynamic politics and the consistent tide of migrants that enter the country every year. (1) In the fiscal year of 2022 alone, upwards of 2.76 million undocumented immigrants crossed the Southwest border, breaking the previous year’s record. (2) As of late, advancements have been made to protect this population through the introduction of the DREAM Act and the implementation of the DACA Program. The DACA Program applies to a small subset of the undocumented community who grew up in the United States and contribute to its economy. The program has served to instill hope and temporary stability in the undocumented community at large through the granting of deferred deportation, a work permit, and a social security number. (3) However, as questions of its legality arise, it becomes imperative to not only protect but guarantee the rights and positions of these undocumented immigrants under the law. Thus, in the face of a political and legal threat to DACA, advocates should redirect their attention toward reintroducing the DREAM Act to Congress, which would serve the same community of individuals as well as expedite their path toward Legal Permanent Residence and citizenship. (4)

Immigrant children raised with American ideals, presently growing in numbers, perpetuate the interest of both politicians and the American public. Through data obtained from the United States Border Patrol, it is apparent that children make up a substantial part of an upward trend in border-crossing: since 2008, there has been a seventeen-fold rise in the number of Border Patrol apprehensions who are unaccompanied children and a five-fold rise when both unaccompanied and accompanied children are considered. (5) Consequently, such individuals are raised and educated surrounded primarily by American ideals and culture, and thus associate more strongly with the United States than their country of origin. Many have forgotten, or perhaps never even learned, the language of their parents and/or country of origin. 

It was this sentiment that led to the introduction of the first version of the Development, Relief, and Education for Alien Minors (DREAM) Act in 2001. (6) Since then, over eleven versions of the DREAM Act have been introduced to Congress with no success. Though all versions vary to some degree, they share one commonality: the provision of a pathway to legal status for undocumented people who came to the United States as children through college, work, or the armed services. (7) Though the DREAM Act may be perceived as generous, there is an underlying stipulation that those considered for such a program must be contributing members of American society. That means that individuals are expected to pursue higher education, enter the American workforce, or serve the American public through the defense of the nation. 

When the DREAM Act failed to pass in both the Senate and Congress in 2012, President Barack Obama decided to initiate an immigration policy known as the Deferred Action for Childhood Arrivals, or DACA. (8) DACA is an executive action by the President and an exercise of prosecutorial discretion on behalf of the Department of Homeland Security. DACA provides adults brought to the United States under the age of 16 temporary deferments from deportation actions and provides them with the opportunity to obtain both a provisional work permit and a social security number. (10) Similar positivist society expectations imbued within the language of the DREAM Act are also required to be eligible for DACA. That is, one must pursue higher education or participate in the workforce with, at minimum, a high school degree. However, unlike the DREAM Act, DACA does not contain a pathway to citizenship or even Legal Permanent Residence. (11)

The election of President Donald Trump in 2016 initiated a new era regarding immigration policy and disrupted the already tenuous security that those protected under DACA had grown to depend on. On September 5, 2017, the Trump Administration announced the phase-out of the DACA Program — initial requests were no longer accepted, and renewal requests were only accepted up until October 5, 2017. (12) This announcement coincided with a memorandum from the Acting Secretary of Homeland Security, which effectively rescinded the 2012 executive order establishing DACA. (13)

The announced phase-out of the DACA Program not only brought about fear from DACA recipients but also the threat of tangible, adverse effects on American society. However, those who supported the Trump Administration’s actions contended that the protections granted by DACA, such as stalled deportation and work permits, often came “at the expense of U.S. workers and taxpayers” and that it rewarded illegal immigration. (14) The then-Department of Homeland Security Secretary Kirstjen Nielsen, argued that ending DACA would establish “clear, consistent, and transparent enforcement of the immigration laws against all classes and categories of aliens.” (15) Yet, a different approach to understanding DACA would suggest otherwise. For one, DACA is like the DREAM Act in that it exists only for a very particular group of undocumented immigrants: those who came as children and contribute to American society. However, unlike the DREAM Act, DACA does not provide a pathway to citizenship or Legal Permanent Residence. There is no “reward” for DACA recipients, but rather a mere exchange for their contributions to society, which is only guaranteed to them for two years at a time, subject to renewal, and only protects against deportation rather than promising legal status in the United States.

The implications of an end to DACA would not only affect individuals but also families and communities. Data shows that an end to DACA would result in an estimated loss of 22,000 jobs every month for two years —about 1,000 jobs each business day. (16) The structure of DACA explains this phenomenon. The DACA Program works based on two-year intervals with a subsequent renewal process. A stop to the DACA Program, then, would see a gradual yet substantial drop in the American workforce. An inability to renew DACA is also the inability to renew a work permit. With almost one million DACA recipients by 2017, the implications to the American economy amidst workforce shortages and inflation would be detrimental. (17) Those who work in health care, such as doctors and nurses, and in education, as teachers and aids, are an incredibly crucial facet of the American workforce, which would find itself in peril with the halt of DACA renewals or an end to the DACA Program. (18) This ousting of professionals in the workforce would inevitably result in devastating effects on American society. 

However, before these effects could manifest themselves entirely, the termination of DACA was challenged by affected individuals and third parties who alleged that the Acting Secretary of Homeland Security had violated the Administrative Procedure Act (APA). (19) With much at stake, including the lives and livelihoods of DACA recipients and their families, the case of Department of Homeland Security v. Regents of the University of California came before the Supreme Court in 2019. The parties of the case did not dispute the authority of the Trump administration to replace Obama’s policies but rather claimed that the rescission of DACA violated the Administrative Procedure Act because it was “arbitrary and capricious” and did not comply with the Act’s notice-and-comment requirements, among other things. (20) The Supreme Court faced two legal questions in Department of Homeland Security v. Regents of the University of California: was the Department of Homeland Security’s decision to wind down the DACA policy judicially reviewable, and if so, was such a decision lawful? (21) Eventually, a 5-4 majority Supreme Court opinion authored by Justice John Roberts suggested that the Department of Homeland Security’s decision to rescind the DACA Program was judicially reviewable and indeed “arbitrary and capricious,” making it a violation of the Administrative Procedure Act” and thus unconstitutional. (22)

  Since the Court did not rule on the constitutionality of DACA in the Department of Homeland Security v. Regents of the University of California, but rather solely on its termination under the Trump Administration, the legality of DACA was and continues to be in the jurisdiction of lower courts. As such, for some years now, the fate of DACA has remained uncertain. This uncertainty is promoted by various “court rulings and administration actions canceling, reinstating or partially rolling it back every few months.” (23) On January 20, 2021, President Biden issued a memorandum directing the Secretary of Homeland Security, in consultation with the Attorney General, to take appropriate action to “preserve and fortify” DACA. (24) However, by July 16, 2021, a federal judge in Texas ruled DACA illegal and blocked new applications, while allowing immigrants with current protection under the program the retention of their status through the consequent appeals process. (25) Since then, the Biden administration has amended DACA to no avail. Most recently, on September 13, 2023, the same federal judge, Andrew Hanen of the Federal District Court in Houston, maintained that President Obama exceeded his authority when he created DACA by executive action in 2012 and “rejected the Biden administration’s latest effort to save the program [… ] saying it remained unlawful even after recent changes.” (26) It is likely, then, given the back and forth between the Biden administration and lower courts, that the legality of DACA, and thus the lives and livelihoods of many, will find their fate in the hands of the Supreme Court, (27) especially considering the Court’s 2019 opinion which asserted first and foremost their ability of judicial review pertinent to the DACA Program. (28)

Until the fate of DACA’s legal standing is settled, the Department of Homeland Security has limited the implementation of DACA under Final Rule. (29) Final Rule now has DACA based on formal regulation rather than prior policy memorandum to “preserve and fortify” the program while it remains under the subject of litigation in court. (30) Essentially, this switch allows for DACA to remain intact, offering some degree of guarantee and stability while its legality is debated. Final Rule, as it is currently established, allows for the continued acceptance and process of applications for deferred action and work authorization for current DACA recipients but will not process initial DACA requests. (31)

This switch in DACA from policy memorandum to formal regulation highlights the precarious position many DACA recipients currently find themselves in. Advocacy, then, for the DREAM Act may be most important now. If a subsequent Supreme Court decision rules DACA unconstitutional, removing recipients’ protection from deportation and the ability to retain a work permit, a significant group of people, now tallying almost one million, will find themselves subject to constant fear and indignity. Society and the economy, as it is currently known, will also suffer the consequences of such a decision, with thousands of job positions left unfilled daily without DACA recipients’ ability to renew their work permits. Moreover, though the ruling of Judge Hanen in Texas may well be successfully rescinded by the legal efforts of the Biden Administration, the immigrant population benefiting from the temporary provisions of DACA will not rest until concrete law establishes and protects their position in American society. The DREAM Act, if affirmed by Congress, would serve as a steadfast protection for undocumented immigrants that could not be dismantled at the state level. And, unlike DACA, the DREAM Act would establish a concrete path to Legal Permanent Residence and citizenship for currently undocumented individuals. Therefore, as a result of DACA’s current tenuous standing in American courts and society as well as its precarious promises of protection, supporters and advocates of DACA should once again redirect their attention to passing the DREAM Act as the primary action of a comprehensive reform of the legal immigration system.

Endnotes

(1) Cohn, D'Vera. "How U.S. Immigration Laws and Rules Have Changed through History." Pew Research Center. Last modified September 30, 2015.https://www.pewresearch.org/short-reads/2015/09/30//how-u-s-immigration-laws-and-rules-have-changed-through-history/.

(2) Ainsley, Julia. "Migrant Border Crossings in Fiscal Year 2022 Topped 2.76 Million, Breaking Previous Record." NBC News. Last modified October 22, 2022. https://www.nbcnews.com/politics/immigration/migrant-border- crossings-fiscal-year-2022-topped-276-million-breaking-rcna53517.

(3) "A Brief History of Civil Rights in the United States: DACA and the DREAM Act." Howard University School of Law. Last modified January 6, 2023. https://library.law.howard.edu/civilrightshistory/immigration/daca.

(4) "The Dream Act: An Overview." American Immigration Council. Last modified March 16, 2021. https://www.americanimmigrationcouncil.org/research/dream-act-overview.

(5) "Growing Numbers of Children Try to Enter the U.S." TRAC, Syracuse University. Last modified June 28, 2022.

(6) "The Dream Act: An Overview."

(7) Id.

(8) "A Brief History of Civil Rights in the United States: DACA and the DREAM Act."

(9) "Consideration of Deferred Action for Childhood Arrivals (DACA)." United States Citizenship and Immigration Services. Last modified September 18, 2023. https://www.uscis.gov/humanitarian/consideration-of-deferred-action-for-childhood-arrivals-daca/frequently-asked-questions#:~:text=DACA%20is%20an%20exercise%20of,time%2C%20at%20USCIS'%20discretion.

(10) "A Brief History of Civil Rights in the United States”

(11) “FAQ:DACA and Dreamers." FWD.us. https://www.fwd.us/daca-101/#:~:text=6.,Dreamers%20pathways%20to%20legal%20status.

(12) "Deferred Action for Childhood Arrivals (DACA)." Arizona State University College of Law. Last modified August 17, 2023.  https://libguides.law.asu.edu/DACA/history#:~:text=On%20September%205%2C%202017%2C%20the,out%20of%20the%20DACA%20program.

(13) "Deferred Action for Childhood Arrivals (DACA)."

(14) “DACA May Help ‘Dreamers,’ but Illegal Immigration Hurts U.S. Workers, Taxpayers, and Wages.” Last modified October 14, 2020. https://www.heritage.org/immigration/commentary/daca-may-help-dreamers-illegal-immigration-hurts-us-workers-taxpayers-and.

(15) "Daca Dreamers: What Is This Immigration Debate All About?" BBC News. Last modified November 12, 2019. https://www.bbc.com/news/world-us-canada-41128905.

(16) Connor, Phillip. "What Happens If DACA Ends?" FWD.us. Last modified August 22, 2022.  https://www.fwd.us/news/what-ifdacaends/#:~:text=Hospitals%20would%20be%20unable%20to,of%20thousands%20of%20young%20people.

(17) Connor, Phillip. "What Happens If DACA Ends?"

(18) Id.

(19) Department of Homeland Security v. Regents of the University of California, No. 18-587 (June 18, 2020). https://www.supremecourt.gov/opinions/19pdf/18-587_5ifl.pdf.

(20) "Department of Homeland Security v. Regents of the University of California." Oyez. https://www.oyez.org/cases/2019/18-587.

(21) "Department of Homeland Security v. Regents of the University of California.”

(22) Id.

(23) McDonnell Nieto del Rio, Giulia, and Miriam Jordan. "What Is DACA? And Where Does It Stand Now?" The New York Times. Last modified June 14, 2022. https://www.nytimes.com/article/what-is-daca.html.

(24) "Deferred Action for Childhood Arrivals (DACA)." 

(25) Id.

(26) Jordan, Miriam. "Federal Judge Again Rules DACA Is Illegal." The New York Times. Last modified September 13, 2023. https://www.nytimes.com/2023/09/13/us/daca-immigration-ruling.html?action=click&pgtype=Article&state=default&module=styln-daca&variant=show&region=MAIN_CONTENT_1&block=storyline_levelup_swipe_recirc.

(27) McDonnell Nieto del Rio, Giulia, and Miriam Jordan. "What Is DACA? And Where Does It Stand Now?"

(28) "Department of Homeland Security v. Regents of the University of California."

(29) "DHS Begins Limited Implementation of DACA under Final Rule." United States Citizenship and Immigration 

Services. Last modified November 3, 2022. https://www.uscis.gov/newsroom/news-releases/dhs-begins-limited-implementation-of-daca-under-final-rule.

(30) "DHS Begins Limited Implementation of DACA under Final Rule."

(31) Id.