The question of DACA can be discussed in two spheres.
There, of course, begs the question of morality, what is just based on our own understanding of what is just and unjust. And then, there are the legal aspects of the fate of DACA which in our world is what will ultimately decide the final verdict. In this article, I’d like to tackle both of those perspectives and perhaps demonstrate the connections between the two.
In its most glorious and elevated condition, the law is meant to be solid, unbreakable, fair, and unbiased. The tradition of precedent aims for consistency and the US Constitution aims for timelessness. However, in many aspects the constitution is outdated, and this isn’t simply anti-traditionalist banter, it’s based upon the fact politics itself has completely changed since the time the ancient document, that we worship like the bible, was created. A primary, and very relevant example, is the growth of presidential power over centuries. As Benjamin Ginsberg, a Professor of Political Science at Johns Hopkins University argues, “talented and ambitious presidents have pushed the boundaries of the office adding new powers that were seldom surrendered by their successors”.
Not to mention, that every administration, and I mean every administration, and every party will interpret the constitution and other laws to their advantage.
Now let’s place that in the context of DACA and talk about how this policy was first enacted. Deferred Action for Childhood Arrivals (DACA) is a policy that gives individuals with unlawful presence in the US after being brought to the country as children to receive a renewable two-year period of deferred action from deportation and become eligible for a work permit in the U.S These are individuals who (in summary):
- Are at least 15 when they apply and have been under the age of 31 on June 15, 2012.
- Are in school, a high school graduate or holder of a high school completion certificate or GED, or an honorably discharged veteran of the U.S. Armed Forces or Coast Guard.
- Are not convicted of a felony, significant misdemeanor, or three or more misdemeanors are ineligible for the program.
Former President Barack Obama brought DACA into existence through an executive order in 2012 after Congress failed to pass the DREAM Act. Since then, over 700,000 received DACA and another million are eligible. Now, Trump and other Republicans are arguing that this was an overreach of power on behalf of the executive branch and used it in their justification to get rid of DACA. What I find amusing, and perhaps it is a simplistic perspective, is that presidents in past have waged wars (unofficially, of course, the Vietnam war is a prime example) that have resulted in the death of thousands, but legislation designed to provide a chance of a normal life without the fear of deportation, is a disgraceful overreach of power. Many argue that per Article I, Section 8 of the Constitution, complete authority is given to Congress to determine our nation’s immigration rules. However, if something was so blatantly unconstitutional, it wouldn’t have been enacted in the first place. Quite simply, “DACA is within the scope of presidential authority because it does not change the law, and does not legalize anything that would otherwise be illegal” as Ilya Somin argues in several articles.
In their attempts to challenge DACA, Trump and his Republicans have been successful in stopping new applicants from receiving DACA, however, older recipients can still renew it thanks to many lower court challenges. Why didn’t Trump simply get rid of DACA? Because after all, if one president can place an executive order in place, then the next one can simply remove it. However, Trump hid behind the argument of unconstitutionality instead to avoid even more backlash from politicians and the public because a direct stance against DACA, based on moral disagreements is not a smart political stance, even for Trump. In fact, this is one of the reasons why the lower courts were able to challenge his decision: he didn’t provide an adequate reason as to why it was a bad policy. Simply put, the Trump Administration cannot provide a moral argument as to why DACA should be destroyed.
However, the fate of DACA is no longer in the hands of the executive branch and will be moving on to the Supreme Court in June by the request of Donald Trump. This court hearing will not be deciding the constitutionality of DACA, but instead, the validity of the lower courts challenges to Trump’s decision. And, this decision is going to outlast any presidential executive order. Here are the possible outcomes of this hearing summarized from Vox’s coverage:
1st: The Court could affirm the lower court decisions, meaning that handing a narrow victory to the Dreamers. This outcome is unlikely, given the Court’s Republican majority and the views expressed by several members of that majority in a similar 2016 case.
2nd: It could affirm Trump’s decision and deem the Trump administration’s reasoning regarding its decision to wind down DACA are adequate, and thus the administration can move forward in shutting it down while leaving the door open for future administrations to potentially revive it with good enough reasoning.
3rd: The Court could decide that the DACA program is, itself, unlawful. In this last scenario, the Court would not just allow DACA to be wound down under Trump — it would forbid any future president from reviving it.
The court is presently more right wing, so a victory for Trump is more likely and a fully revived DACA is nearly impossible. In the crossfire of legal battle after legal battle are the lives of Dreamers themselves.
While the political world is having a shouting match over who is right and who is wrong, the 700,000 individuals who have built their lives in the US, who have made deep impacts in their community, and who are now fighting on the frontlines of the COVID 19 outbreak are waiting to see if their safety is in jeopardy, for a choice that they did not make. The USFD could never deport the 11.3 million undocumented immigrants in the US, it only has the resources to deport 400,000 per year. What I find baffling, from a moral standpoint, is that from all the battles the Trump administration could choose to fight in immigration it chose a group of young, working, educated individuals who have no criminal background and cause absolutely no harm. Dreamers had placed their trust in the US Federal Government, giving them personal information that, if in the wrong hands, could lead ICE right to their doorstep.
To forget the people behind the policy, to justify jeopardizing the lives of thousands of people, is simply a consequence of the trend of dehumanization of immigrants in the US. If this concerned any other group of people there would be public outrage across the country.
Because the ball is now in the Supreme Court (no pun intended) there is very little the rest of the country can do. One can only hope that whatever the outcome, Dreamers can continue to dream.