The Supreme Court could decide the fate of the DACA policy within the next two years. DACA provides protection from deportation and gives legal work authorization to roughly 600,000 undocumented individuals who came to the U.S. as young children. A pending federal court decision will likely send the case to the Supreme Court; if the Justices choose to hear the case, their ruling will likely determine once and for all if those protections can remain in place.
Story and photo by Fwd.us | AUG. 8, 2023
The Supreme Court could control the futures of 600,000 DACA recipients
The Supreme Court could decide within the next year whether to hear a case about the legality of the Deferred Action for Childhood Arrivals (DACA) policy.
The case is awaiting a final ruling from Judge Andrew Hanen in the Texas Southern District Court; Judge Hanen previously ruled against DACA and declared the policy unlawful. The judge heard arguments in the case in early June 2023, and is expected to issue a decision any day. Legal experts generally agree that he is likely to continue his streak of ruling that DACA is illegal. Importantly, Judge Hanen’s decision cannot stop current DACA recipients from renewing their protections.
If Judge Hanen rules against DACA, the case will then go to the Fifth Circuit Court of Appeals, which previously ruled against DACA. Assuming the Fifth Circuit rules the same way again, the Biden Administration would then likely file a request with the Supreme Court to hear the case. Because of how the Supreme Court chooses and hears cases, the petition for certification may not be answered until 2024, and if granted, the case may not be heard and decided until at least 2025.
Considering the current makeup of the Court and its previous immigration decisions, there’s a good chance the Justices could also rule against DACA. If the Court ultimately upholds Judge Hanen’s ruling, and if the Court prohibits the government from processing DACA renewals, the 600,000 current DACA recipients could be stripped of their ability to work legally, and would be exposed to the threat of deportation.
If DACA renewals are ended, an estimated 1,000 DACA recipients would be forced out of their jobs every week for the next two years.
DACA has been in legal limbo for half a decade
For half a decade, DACA has faced protracted litigation that has created overwhelming uncertainty for current recipients, and has prevented the government from processing requests from new applicants.
The legal odyssey began in 2017 when then-Attorney General Jeff Sessions announced that the Trump administration was ending the DACA policy. Several lawsuits were filed to keep DACA in place, and federal judges decided in their favor, determining that the Trump administration had violated federal procedure by ending DACA without a formal process. The Trump administration asked the Supreme Court to review the cases; in 2020, the Court issued a 5-4 decision affirming that the Trump administration had not followed the proper procedures. This decision kept DACA in place, though the Court deliberately said nothing about the underlying legality of the policy itself.
Meanwhile, a separate legal challenge was launched by a coalition of Republican attorneys general. They sued the U.S. government, arguing that the DACA policy is unlawful and directly harms their states. The case came before Judge Hanen in the Southern Texas District Court, and in 2021 he sided with the states. Judge Hanen asserted that DACA was illegal because the Obama administration had skirted the formal rulemaking process, and that DACA’s protections went beyond the government’s authority.
Judge Hanen’s 2021 decision prohibited the government from processing new applications, but it allowed current DACA recipients to retain their protections and to file for renewals while the Biden administration went through a new formal rulemaking process to bolster the program.
The Biden administration appealed Judge Hanen’s decision; in 2022, the Fifth Circuit Court of Appeals upheld Judge Hanen’s determination that the original DACA policy was unlawful, but sent the case back to Judge Hanen to consider the legality of the new formal DACA rule issued by the Biden administration. All parties have presented arguments in Hanen’s court; all that is left is his decision.
DACA has been a tremendous success, but legal challenges limit its potential
The DACA policy was implemented in 2012 by then-Secretary of Homeland Security Janet Napolitano. The Obama administration intended the policy to provide temporary protections for undocumented children—often called Dreamers—while Congress worked to create a pathway to permanent legal status. However, Congress has failed to pass any meaningful legislation for Dreamers in the 11 years since DACA was established.
In that time, DACA has been a transformative policy. With DACA, the overwhelming majority of recipients has graduated high school, and nearly half have attained some college education. Most DACA recipients are working: more than three-quarters of DACA recipients participate in the labor force, contributing an estimated $13.3 billion to the U.S. economy each year. Some 300,000 DACA recipients work in industries with labor shortages, including healthcare, business services, and education. About a third are married, and more than a third have at least one child at home. Nearly 1.1 million U.S. citizens live in households with a DACA recipient.
Unfortunately, DACA’s eligibility requirements have not been updated since the policy was announced. DACA applicants must have been in the U.S. since 2007, meaning individuals who could qualify today could be no younger than 16. And even if applicants can meet these requirements, the legal challenges have prevented the government from processing new applications. All told, about 2 million Dreamers currently living in the U.S. are not protected by DACA.
This includes as many as 400,000 individuals who would be eligible to receive DACA status, but cannot have their application processed because of Judge Hanen’s injunction, according to FWD.us estimates. In fact, nearly all undocumented high school students graduating this year, and in the years to come, will be ineligible for DACA.
DACA has kept families together and helped young people build their lives and careers in the country they have known as home. The future of this transformative policy, and the futures of the thousands of people people who have been protected by it for more than a decade, could be decided by the Supreme Court within the next two years.
