In the News

A real remedy for Dreamers will have to come from Congress, not the Supreme Court

In an ideal world, the fate of the Deferred Action for Childhood Arrivals program — and, by extension, the roughly 700,000 people enrolled in it —wouldn’t be up to the Supreme Court.

The world that we live in isn’t an ideal one, needless to say.

On Tuesday morning the Supreme Court heard oral arguments in Department of Homeland Security v. Regents of the University of California, a case combining several challenges to the Trump administration’s decision to cancel the program in September 2017.

DACA remains in effect, for the time being, due to a preliminary injunction issued by a lower court. But the program’s supporters aren’t feeling overly confident about its prospects.

“There are more ways for this to go badly than for it to go well,” said Garrett Epps, a professor of law at the University of Baltimore.

Many of the advocates who had gathered in the nation’s capital had a similar feeling of foreboding after the questioning. The Trump administration is arguing that the program is illegal, and also that the decision to end it shouldn’t be subject to judicial review.

Chief Justice John Roberts, the likely swing vote, had tough questions for the lawyers on both sides. But U.S. Rep. Joaquin Castro, D-San Antonio, chair of the Congresssional Hispanic Caucus, said he’s not pinning his hopes on Roberts — or the court. In a press conference after the arguments, he called on Congress to act to pass legislation to protect Dreamers.

The program, created by President Barack Obama by executive action in 2012, is a popular one. Polls show an overwhelming majority of Americans agree that the people it protects — immigrants brought to this country as children — should be allowed to stay.

But conservatives have long maintained that DACA itself is an example of unlawful executive overreach, and President Donald Trump agrees. In September 2017, he said he was cancelling DACA because it is “unlawful and unconstitutional and cannot be successfully defended in court.”

The reality is that DACA hasn’t been successfully defended in court to date. It just hasn’t been successfully challenged in court either. And a program created by executive action can be ended the same way — at least in theory.

“If you can proclaim it, why can’t you rescind it?” asked Epps, rhetorically.

“It’s not a bad question,” he added. Epps thinks Americans who support DACA, as he does, will have to pin their hopes on the justices ruling the Trump administration didn’t follow federal law requiring policy changes be done in an orderly way. He cites previous such examples by Trump as the travel ban and the attempt to add a citizenship question to the census.

To that point: Trump rescinded DACA abruptly, back in 2017, and seemingly without regard for the disruption that might result from such a decision—and its adverse effects on American citizens as well as DACA recipients.

The costs of ending DACA would be considerable, even if you’re only thinking coldly about the bottom line. The Houston Hispanic Chamber of Commerce, in a brief filed last year, argues that ending the program would cost about $6 billion a year — $2 billion in the Houston area alone — to Texas’ annual gross domestic product. Texas is home to roughly 109,000 DACA recipients.

And although Trump has occasionally expressed sympathy for those Americans—who are American in every sense except not having arrived here legally — it would seem that the immigration hawks in the administration have been whispering in his ear.

“Many of the people in DACA, no longer very young, are far from “angels,” Trump tweeted Tuesday. “Some are very tough, hardened criminals.”

“President Obama said he had no legal right to sign order, but would anyway,” the president continued. “If Supreme Court remedies with overturn, a deal will be made with Dems for them to stay!”

Under the terms of the program, as laid out in a 2012 Department of Homeland Security memorandum, individuals who have been convicted of a felony or significant misdemeanor are ineligible for its protections.

And it’s hard to believe that Republicans in Congress would respond to such a Supreme Court “remedy” by making a deal with Democrats to protect the Dreamers from deportation. In theory, they could have done so already — or before the Supreme Court issues its ruling on the consolidated case it heard this week.

As Castro noted, a bill that would provide Dreamers with a path to legal status, the American Dream and Promise Act of 2019, passed the House on a mostly party-line vote in June, but it has yet to be taken up in the Senate.

It’s as if the measure has been stuffed into a cobwebbed closet in Majority Leader Mitch McConnell’s office, along with various other pieces of potentially worthwhile and broadly popular legislation.

As Americans we’ve become used to the dysfunction and gridlock in our nation’s capital, but we shouldn’t become resigned to it—or forget that there are lives, families, and communities at stake.

“These DACA recipients aren’t just students. They’re our families, they’re business owners, they’re homeowners, they’re our neighbors,” said U.S. Rep. Ruben Gallego, a Democrat who represents Arizona’s 7th Congressional District, after the oral arguments concluded.

“This administration has purposely put them in a position that I think is something we don’t want to see. He’s using them as leverage for some greater immigration game,” Gallego continued.

Republicans might argue that Obama did the same. But the partisan bickering on both sides misses the point — that Dreamers shouldn’t be in such a precarious position in the first place.