A U.S. Supreme Court opinion has maintained the legal status of an estimated 700,000 people whose undocumented families brought them into the United States when they were young children.
Although many are praising the high court’s opinion, USC experts warn that it does not make permanent the protections of the federal Deferred Action for Childhood Arrivals (DACA). If anything, the opinion signals that opponents of DACA could try other means to end the program that has been in place since 2012.
“While celebration is warranted, we also know it does not end here,” said Manuel Pastor, professor of sociology, American studies and ethnicity at the USC Dornsife College of Letters, Arts and Sciences. “DACA remains a temporary fix to a long-standing issue, and Congress should take up bills like the Dream and Promise Act to ensure these young Americans immigrants can stay in the only homes they’ve ever known.”
A majority of Americans — 74% — support granting permanent legal status to children brought into the United States by undocumented families, according to results of a Pew Research Institute survey that was released this week.
While celebration is warranted, we also know it does not end here.
Congress sought to tackle the issue back in 2001 when it considered the Development, Relief and Education for Alien Minors (DREAMers) Act. However, the bill never made it to the desk of then-President George W. Bush.
The Obama administration established DACA in 2012 as a stopgap to what they hoped would be a permanent solution from Congress. Under the U.S. Department of Homeland Security, the program gave the children — many of whom are now adults — protected legal status that they had to renew every two years, as long as they met eligibility requirements. Some of those children are now almost 40 years old.
Supreme Court ruling on DACA leaves unanswered questions
“The Supreme Court of the United States’ DACA decision is a victory for fairness and the rule of law in the United States,” said Nathan Perl-Rosenthal, associate professor of history, spatial sciences and law at USC Dornsife. “But it leaves unresolved a more fundamental form of inequality: the arbitrary nature of birthright citizenship, which allows the government to ignore the Dreamers’ deep ties to the United States simply because they happened, through no fault of their own, to have been born outside of our borders.”
Advocates have long hoped that Congress would adopt a more permanent solution that would safeguard the children from deportation.
“What we have here today is a victory for DACA recipients. They still have status,” said Jean Lantz Reisz, an expert in immigration law and advocacy and the Audrey Irmas Clinical Teaching Fellow at the USC Gould School of Law “But there is nothing in the decision that protects them from the government coming up with a way to end the program in a procedurally appropriate way that would withstand judicial scrutiny.”
DACA could be subject to future legal challenges
The Supreme Court’s 5-4 opinion signals there are other legal pathways for President Donald Trump or other opponents of DACA to dismantle it. The question is whether the administration will do so this election year.
The decision does not say that the DACA program cannot be terminated.
“The decision does not say that the DACA program cannot be terminated. It just has to be terminated through lawful means,” said Niels Frenzen, director of the USC Gould’s Immigration Clinic, after he had studied the court’s opinion. “The Trump administration now has several options available to comply with the order.”
The Trump administration has been in a similar situation before. In 2017, the administration faced challenges in court for a sweeping travel ban that restricted people traveling from certain Muslim countries to the United States. Advocates for immigrants attempted to end the ban, but a series of court decisions and a Supreme Court opinion on the case Trump v. Hawaii in 2018 enabled a version of the ban to remain in place.
“The administration went through three versions of the [Muslim travel] ban,” Frenzen noted. “The first two were struck down by appellate courts, and the administration then changed rationale and stopped using the implicit religious designation. The third version of the travel ban, a watered-down version, was ultimately upheld by [the Supreme Court]. We could be going down that path again.”