Will Trump cement the DACA program into law if he tries to upend it again?

There are many good reasons the Trump administration should rethink its plans to continue attacking the Deferred Action for Childhood Arrivals (DACA) program and the hundreds of thousands of people who rely upon it. The program is wildly popular with Americans across the political spectrum, DACA recipients are playing a critical role as frontline workers during the ongoing coronavirus pandemic and any new effort to end DACA is likely to get blocked in the courts and result in years of litigation.

But there’s another reason the administration might want to stay its hand: taking action to end DACA now could make it far easier for a new Congress and a new administration to solidify DACA protections in law.

The DACA program sets forth a process for certain young immigrants who came to the country years earlier as children to come forward, pay a fee, pass background checks and receive temporary and renewable permission to live and work in the country lawfully. While the Trump administration attempted to terminate the program in September 2017, the Supreme Court last month vacated that action, concluding that the administration failed to consider the substantial and legitimate reliance interests that have developed around the program. The court noted that the administration needed to consider these reliance interests because rescinding the DACA program was an agency action subject to certain procedural requirements.

Though DACA falls short of the permanent protection that can only be achieved through congressional action, it has genuinely transformed the lives of the more than 825,000 young people who have participated in the program. Over the past 8 years, DACA recipients have completed their education, entered the workforce, enlisted in the military, opened businesses and started families, becoming tightly woven into the fabric of American life. More than 200,000 DACA recipients are working in frontline jobs during the coronavirus crisis, including nearly 30,000 who are putting their own lives at risk to serve as health care workers. It is little wonder that 85 percent of Americans believe that immigrants who came to the country as children should be given the opportunity to remain here.

Notwithstanding the popular outcry and political peril that would result from a second attempt to end the program, President Trump and top Department of Homeland Security officials have signaled that they are preparing to do just that.

But just as the last rescission effort was an agency action subject to procedural requirements, this rescission would be as well. It’s also highly likely that such a memorandum would be subject to the requirements of the Congressional Review Act (CRA), which apply broadly to agency statements of general applicability “designed to implement, interpret, or prescribe law or policy.”

A DACA rescission memorandum would have broad applicability, affecting not only the nearly 650,000 young people who rely upon the program today, but also the hundreds of thousands of young people who should be eligible to apply right now based on the Supreme Court decision but who would see that opportunity close with the issuance of a new memorandum.

The application of CRA procedures to a rescission memorandum would have significant consequences. The CRA allows Congress to use fast-track procedures to bypass a Senate filibuster when voting to overturn a recent agency action. Like any law, it requires signature by the president, which would not occur under Trump, or a veto override. But the timing provisions in the CRA mean that agency actions taken this late in a presidential term likely can be acted upon during a new administration and by a new Congress.

That’s how Trump was able to use the CRA to overturn a number of agency actions taken late in the Obama administration. A new Biden administration with majority support for DACA in the House and Senate could do the same. Importantly, the CRA says that if an agency action is overturned through this process, no future administration can take an action that is “substantially the same.” That would mean a subsequent anti-immigration administration would be severely curtailed in its ability to rescind the DACA program.

Overturning the rescission of the DACA program would not be the last word on immigration. A new administration and Congress would almost certainly want to go further than preserving the current DACA program, such as by providing — at the very least — the type of permanent protection for Dreamers and Temporary Protected Status holders found in the House-passed American Dream and Promise Act, H.R. 6.

Still, the administration may want to consider whether to take an action that delivers all the negative consequences of trying to end DACA while clearing the path for a future administration and Congress to easily cement the program into law. 

Sam Berger is vice president for Democracy and Government Reform at the Center for American Progress. He previously served as a senior attorney in the Office of Management and Budget during the Obama administration.