Building a better DACA

Against all odds, the Deferred Action for Childhood Arrivals (DACA) program has survived Donald Trump’s presidency. But while things are looking up for undocumented immigrants brought to the U.S. as children — known as Dreamers — they remain vulnerable.

Three problems haunt DACA. First, there can be no permanent protection for Dreamers until Congress changes the immigration laws. Second, congressional action remains a long shot. Third, the Supreme Court never has definitively resolved whether a program such as DACA can be implemented by a president legally.

DACA’s survival so far owes much to the sloppiness of the Trump administration. The Supreme Court found that the administration’s 2017 attempt to end the program was so flimsily explained as to be arbitrary and capricious. In 2020, Action Homeland Security Secretary Chad Wolf launched a new attempt to wind down DACA. But courts found that Wolf was illegally made acting secretary, and thus had no authority to change policies. 

Through all these legal fiascos of Trump’s tenure, the courts largely avoided the “elephant in the room”: Is DACA actually legal, or not? Four years ago, that was the key question, and it is likely to be again soon. The Texas attorney general has been pushing forward with a lawsuit to have DACA declared invalid. A district court in Houston held a hearing on that case just yesterday. 

Like most scholars of immigration law, I do not think Texas’s objections to DACA hold up. But what matters is what judges think. In retrospect, the Obama administration made legal mistakes in how it implemented the DACA program, leaving it more open to challenge than it needed to be. Indeed, Texas succeeded in stopping President Obama from expanding the DACA program in 2014.  

Thus, the task for the incoming Biden administration is more complicated than it might appear. There is an immediate need to restore the protection that Dreamers had before Trump took office. There is a long-term need to try to persuade Congress to pass legislation that would recognize Dreamers’ permanent home in this country. And, since Congress might fail, there is a need to try to use executive power to insulate DACA from legal attack as much as possible. That is why Biden should not be satisfied with the 2012 version of DACA. 

An immediate improvement would be to put a revamped DACA program through a notice and comment process. This means publishing a draft proposal, inviting comments from the public, and carefully considering the public input before finalizing a regulation. The Obama administration’s failure to do this has been a primary line of attack in the Texas cases. The problem is that notice and comment take a great deal of time, and thus might not offer Dreamers immediate help. However, the recent court order restoring DACA in its original form removes some of the pressure on Biden to act quickly. He can take advantage of that extra time to repair one of DACA’s original weaknesses.

There are other vulnerabilities embedded in DACA that could be repaired. Texas has attacked the Obama-era version of the policy for considering DACA recipients to be “lawfully present” in the country. This is a thorny and arcane legal issue. Immigration lawyers know that immigration status is complex, context-specific, and often a shifting muddle. A person can be lawfully present for one purpose and not for another. But the public and some federal judges understand immigration status in more black-and-white terms. A person is either legally or illegally in the country. Simple as that, right? Not really, but the original DACA policy confused some judges about what kind of status it was really granting, making it easier to attack the entire program. 

The Biden administration will need to be painstakingly precise in articulating which benefits are extended through DACA, and which are not. The administration should be clear that DACA is really a package of separate rights given to immigrants. Even if a court finds fault with just one part of the program, it should be made more clear that the rest of it can survive.

When Obama sought to expand DACA in 2014, his administration was caught off guard by the success of legal attacks on it. In 2021, Biden will know what’s coming. Even if he cannot get Congress to codify protection for Dreamers in legislation, he can do a great deal to build a DACA program that is engineered to withstand ferocious legal attack, and thus a program befitting the perseverance of those it seeks to protect.

Michael Kagan is the Joyce Mack Professor of Law at the University of Nevada, Las Vegas, where he teaches immigration and administrative law, and is the author of “The Battle to Stay in America.” Follow him on Twitter @MichaelGKagan.