On Tuesday, the nation’s highest court will hear oral arguments in a case challenging how the Trump administration ended an Obama-era program shielding around 700,000 undocumented immigrants from deportation, putting an issue that’s been in limbo for years back at the forefront of the immigration debate.
During his presidential campaign, Donald Trump, who made immigration his signature issue, pledged to end the program dubbed “Deferred Action for Childhood Arrivals,” arguing that the executive action that brought the program to fruition was an overreach of authority. A few months into his presidency, and with a lawsuit looming, Trump followed through on that campaign promise, calling for the wind down of protections.
That decision prompted an outcry from immigration rights advocates, education institutions and business leaders, and sparked a series of legal challenges that eventually landed the case before the Supreme Court. But the notion of protecting young undocumented immigrants who were brought to the US as children from deportation has roots in years of failed legislative efforts.
“Short of being able to actually find a bipartisan path forward and make politically tough decisions, we wouldn’t be here. This is purely a result of Congress’ inability to act on immigration,” said Casey Higgins, a fellow at the Bipartisan Policy Center and former aide to ex-House Speaker Paul Ryan.
In 2001, Sens. Orrin Hatch, a Republican from Utah, and Dick Durbin, a Democrat from Illinois, introduced the Development, Relief, and Education for Alien Minors Act, also known as the DREAM Act. It sought to provide young undocumented immigrants a pathway to legal status and earned the group of undocumented immigrants brought to the US as children the moniker “Dreamers.”
Since then, there have been several iterations of the measure that – while different to some degree – seek to put the group on a path toward legal status.
Democrats and Republicans have been sympathetic to the hundreds of thousands of undocumented immigrants who were brought to the US as children, many of whom were under the age of 10.
Democrats tried to strike a deal with Trump to keep protections in late 2017, but it fell through. Other attempts to extend protections have popped up since then, including Democratic Rep. Lucille Roybal-Allard’s “Dream and Promise Act,” which puts the so-called “Dreamers” on a pathway to legal status. The bill passed the House this year, but is likely to face an uphill-battle in the Republican-controlled Senate.
The give and take between Democrats and Republicans over “Dreamers” has made it difficult to achieve a bipartisan compromise. Trump himself has also flip flopped on the issue.
“Both sides can’t find where that sweet spot is,” Higgins, who previously worked on negotiations, said. “Republicans ask for things on the border that Democrats can never do. And for Republicans, a special pathway to citizenship is something that’s going to be very difficult because there are people who’ve waited in line who don’t get a special pathway to citizenship.”
Using executive action
Many undocumented immigrants who fall under this group are unable to obtain legal status on their own because they were either brought into the country illegally or they overstayed their visas. That often precludes them from becoming a lawful permanent resident because one of the requirements is having entered – and resided in – the country legally.
To that end, during President Barack Obama’s second term, then-Homeland Security Secretary Janet Napolitano, called on her team to see what the executive branch could do to shield this share of the undocumented population from deportation.
“The concern I had was that there was actually a much larger population all living in fear of deportation and all unable to get work authorization,” Napolitano told CNN in a recent interview.
In June 2012, Napolitano issued a memo directing the heads of immigration agencies within the Department of Homeland Security to defer enforcement against undocumented immigrants who were brought to the US as children who meet certain criteria and create a program for them to apply. Obama announced the inception of the Deferred Action for Childhood Arrivals program thereafter.
To be eligible, applicants had to have arrived in the US before age 16 and have lived there since June 15, 2007. They could not have been older than 30 when the Department of Homeland Security enacted the policy in 2012. Recipients are required to renew their protections every two years.
As of April 2019, the majority of DACA recipients are from Mexico and Central America, according to US Citizenship and Immigration Services. The average age of the program’s beneficiaries is 25 years old.
Napolitano, now the president of the University of California, will attend the oral arguments in the DACA case Tuesday.
The plaintiffs, including the University of California, a handful of states and DACA recipients, will argue to the Supreme Court that the phase-out violated the Administrative Procedure Act, a federal law that governs how agencies can establish regulations.
“What I hope happens is that in the midst of an important but technical argument before APA, the court also recognizes the really harmful impact they would have if they were to overturn the injunctions that have been awarded and allow the administration to rescind DACA,” Napolitano said.