On Sept. 13, a federal judge again declared the Deferred Action for Childhood Arrivals program, or DACA, illegal. The ruling does not end the program but extends an already years-long legal battle over its existence.
Current DACA recipients, known as "Dreamers," are still eligible to reapply for the legal protections that allow them to stay and work in the United States. New applications remain halted, stuck in limbo since 2021. The ruling will likely be appealed to the U.S. Supreme Court.
Pratheepan (Deep) Gulasekaram, a professor of constitutional law and immigration law at CU Boulder, studies the constitutional rights of noncitizens and has written multiple books on immigration policy. Gulasekaram offers his take on what this latest ruling means for DACA recipients and the state of immigration in the United States.
Professor Pratheepan Gulasekaram
Tell us a little about DACA'S background. How did we get to this point?
DACA was announced by the Obama administration back in 2012. At that time, Barack Obama's administration was already creating what are known as enforcement priorities for immigration, sort of guidelines for Immigrations and Customs Enforcement that classified people who were young, who were students or who had no felony background as the lowest priority for deportation.
Despite the publication of these priorities, line-level ICE officers weren't always obeying, and many people who fell under low-priority enforcement were still caught up in the dragnet. So, in 2012, Obama announced the creation of the DACA program.
Importantly, at that time, DACA was created as a memorandum from the Secretary of Homeland Security. If people met the criteria, they could get deferred status for their deportation, meaning the government would let you stay for two years with the possibility of renewal. Something else that didn't come in the memorandum, but applies more generally to anyone who gets to stay, is work authorization. Once someone has deferred action, they have protection from deportation and the right to seek employment during that time.
Texas and other states sued to get this latest ruling. What are their main concerns?
DACA was not challenged for quite some time, really until near the beginning of President Donald Trump's administration. There was a challenge that made it all the way to a federal court in Texas. That court was specifically chosen for the judge, U.S. District Judge Andrew Hanen, because he had previously ruled on-and rejected-an extension of DACA that Obama tried to enact several years before.
Hanen ruled it was illegal because of the way it was created-as a memorandum from the Department of Homeland Security and not a more involved process that complies with procedural rules and philosophy that usually accompany action from a federal agency.
Fast forward to 2020, when incoming President Joe Biden asks his Secretary of Homeland Security to clean up these rules and essentially codify DACA. The original ruling from Hanen was at the 5th Circuit Court of Appeals at this point. When the 5th Circuit saw another attempt at policy and rulemaking happening, they kicked DACA back down to Hanen to see if he thought it made any difference. He didn't. And so issued the ruling we have from Sept. 13, where he concludes the program is still illegal.
Interesting to note, nowhere in this process did he stop DACA renewals. Dreamers can still renew their applications every two years. But the federal government cannot process any new applications.
What happens now?
I think any federal court, and anybody who knows anything about immigration and the 5th Circuit Court of Appeals, fully expects with near certainty that the court is going to very quickly approve of and affirm Hanen's ruling based on their rhetoric in other immigration cases.
The only interesting thing the 5th Circuit might do is take it upon themselves to go even further. Essentially, they could agree that DACA is illegal and add that current Dreamers cannot continue to defer deportation. If that happens, the White House will likely very quickly appeal to the Supreme Court.
Of course, the makeup of the Supreme Court looks very different than it did when DACA started. It's much more likely the court has at least five votes to agree that DACA is illegal, if it's appealed and they agree to take the case.
Then the question becomes: What do we tell Dreamers who have been here for years? That's hundreds of thousands of people who currently have DACA status.
How big of an issue do you expect this to be in presidential campaigns?
It will be a huge one.
Timing of potential litigation matters. If Biden is still in office, the administration will appeal. It's hard to say if someone else in the office would do the same.
It's also important to note that DACA, and Dreamers particularly, have garnered a lot of sympathy amongst the American public. These are young people brought to the United States-and it's become a very popular program, which is something candidates, and Congress as well, should consider.
What is DACA's impact on the broader conversation about immigration in the US?
If it is your belief that somehow removing DACA or any such protection is magically going to help with immigration enforcement-it won't. There are 11 million people without lawful status in the United States. It's a false choice to believe that removing DACA protection will reduce that or that people won't come here, or won't be here, unlawfully.
Utimately, if we don't find a solution, not just for DACA recipients, but for the unlawfully present population in general, we are just going to deepen the immigration problem that we already have in the United States.
