Attention may soon turn to the plight of people brought to America as children who face deportation if Congress does not protect them. The upcoming court ruling could leave hundreds of thousands vulnerable if lawmakers don’t act with a new way to protect “Dreamers.”
In 2012, President Barack Obama launched the Deferred Action for Childhood Arrivals (DACA) program. DACA established criteria that allowed qualified young people to be protected from deportation and obtain work authorization.
In 2017, President Donald Trump ended DACA. However, in June 2020, the Supreme Court concluded that while the Trump administration had the right to end DACA, it did not follow proper procedures, particularly because DACA recipients had a trust interest.
“In July 2021, a Texas court ruled that the DACA program was illegal, but issued a partial stay (i.e., pause) of its decision to allow existing DACA recipients to continue to renew their DACA and work authorization,” according to an analysis by Berry Appleman and Leiden. “However, the court has vacated DACA as far as new applicants are concerned. The Biden administration appealed the ruling. The U.S. Court of Appeals for the Fifth Circuit heard oral arguments on July 6, 2022.”
To help resolve legal issues surrounding DACA, the Department of Homeland Security published a final regulation in August 2022. Previously, DACA existed under a 2012 memorandum. The Biden administration hopes the order will strengthen its standing in court.
The stakes are high. More than 600,000 current DACA recipients could be forced to leave the country once their authorization period ends. Analysts point out that the problem goes beyond numbers, as ending DACA would mean potential deportation for people married to US citizens, men and women with US-born children, and individuals employed as doctors, nurses, medical researchers, computer specialists and many other professions.
Reports from the Migration Policy Institute, the American Immigration Council, Boundless, the Bipartisan Policy Center, the Cato Institute, the Center for American Progress and others concluded that ending DACA would be harmful to Americans.
To better understand the legal situation surrounding DACA, I interviewed Andrew Pincus, a Mayer Brown attorney who has argued 30 cases before the US Supreme Court. (He provided written responses.) Pincus filed amicus briefs on behalf of the business community in DACA cases.
Stuart Anderson: What do you expect from the Fifth Circuit on DACA, and if so, why?
Andrew Pincus: Although I believe there is a strong argument that the Department of Homeland Security has the statutory authority needed to create the DACA program, the Fifth Circuit held in an earlier case that the Department lacked the authority to establish DAPA. [Deferred Action for Parents of Americans] program that provided deferred action and work authorization for parents of US citizens and legal permanent residents. The district court’s decision to invalidate DACA relied heavily on this precedent, and there is a good chance that the Fifth Circuit judges will conclude that the DAPA decision requires them to invalidate DACA.
Anderson: If the Fifth Circuit’s decision is unfavorable, what would happen next?
Pincus: The next step would be for the federal government and intervenors to seek a Supreme Court review of that decision. Let’s hope they do so quickly.
Anderson: What’s the best case for a court ruling on DACA?
Pincus: The best case for the more than 600,000 people whose lives depend on DACA would be for Congress to act and eliminate the uncertainty — and the risk of their lives being destroyed by a final court decision to revoke DACA. The second best outcome would be a court ruling upholding DACA. That’s second best because of the risk that a future administration will try to eliminate DACA, as President Trump did in 2017.
Anderson: What is the worst case?
Pincus: The worst case scenario, which is unfortunately a very real possibility, is that the courts invalidate DACA. This means that more than 600,000 people will lose their ability to work, drive, participate in society, and face the possibility of being deported to countries they never knew because they came here as children.
Their families also suffer, including the more than 500,000 US citizen children of DACA recipients whose mother or father will no longer be able to work to put food on the table and a roof over their heads, and who may be forced to leave their children and move to another country. And the entire American economy will suffer: a recent report explains that, on average, 1,000 people will be removed from the workforce every workday for two years — at a time when millions of jobs remain unfilled due to worker shortages. Many of these jobs are in key professions, such as health care, which will lose 1,600 workers every month for two years, and education, which will lose 800 professionals every month.
Anderson: What role should Congress play?
Pincus: Congress should enact legislation that codifies the DACA program and, in particular, protections from deportation and eligibility for work authorization and pretrial release, as well as allowing the nearly 100,000 DACA-eligible individuals to apply for the program. This will remove the dire risk these individuals and their families face today that their lives will be destroyed by the judicial removal of DACA.