A year ago, President Donald Trump ended DACA. Today, it still exists.
But the fate of the Deferred Action for Childhood Arrivals program is shaky at best, experts say. And the rollercoaster year of court decisions that has kept it alive thus far are likely leading to a Supreme Court showdown that could be the end of the road.
“The past year has taken a wild ride on the DACA story,” said Josh Blackman, a law professor at the South Texas College of Law Houston and scholar with the libertarian-leaning CATO Institute.
But now “we’re in the exact same place,” he added.
For the roughly 700,000 young undocumented immigrants who came to the US as children that DACA protects from deportation, the ongoing uncertainty about their future in this country also continues.
“It’s a real shame,” said Florida Republican Rep. Carlos Curbelo, a staunch DACA supporter. “These are people’s lives. These are young men and women who are working, raising families, making mortgage payments, car payments, and they’ve literally lived from court decision to court decision all because there are too many people in both parties who prefer the politics of immigration than the solutions for immigration.”
All eyes are also on the confirmation hearings of Judge Brett Kavanaugh. If confirmed to the Supreme Court, Kavanaugh would likely cast the deciding vote on the legality of DACA.
Twists and turns
The concept of the Obama administration program remains popular, and a vast majority of lawmakers say the program should be preserved through formal law.
Trump originally sought to force Congress to do just that, setting a six-month delay after which the two-year DACA permits would begin to expire. But before that deadline arrived, federal judges blocked the administration from ending DACA, ordering the administration to continue renewing any existing two-year permits.
Both the House and Senate then tried and failed in the past year to pass legislation that would have preserved DACA, stalemating over terms of the protections for immigrants and corresponding border security measures paired with it.
Trump himself also twisted and turned on DACA, both praising its recipients and the program, and rejecting several offers to replace it as not aggressive enough in expanding immigration enforcement powers and cutting legal immigration.
As DACA continued to exist, Texas and a coalition of red states then sued to put the program before a court widely expected to find the program itself to be illegal.
In an unexpected decision last week, Texas-based Judge Andrew Hanen held off on immediately halting the program, buying it more time to continue.
But Hanen warned he is ultimately likely to find the program illegal, which would likely pave a fast track for the Supreme Court to have to sort out the expected conflicting federal court rulings.
Will Congress act?
Hanen joined the chorus urging congressional action.
“If the nation truly wants to have a DACA program, it is up to Congress to say so,” Hanen wrote.
“Everyone agrees that Congress should do this, there is no reason we should still be fighting about this in the courts,” said Blackman, who agrees with Hanen that the program is likely illegal.
But the odds of Congress trying again before pivotal midterm elections seem slim, with lawmakers showing little appetite to return to the issue after two embarrassing legislative defeats.
Greisa Martinez, the deputy executive director at United We Dream and an DACA recipient, said the past year has been challenging for young people like her, but also empowering. She said her group has spent the year building and has become more powerful, politically.
“I think it’s exhausting, it’s emotionally draining, but then there’s a moment where you go through those things and you realize that at the end of the day, you’re the one that has control,” Martinez said. “You’re not hopeless and you can do something about it, and we’ve been seeing a lot more people join our ranks.”
Blackman says the Supreme Court could likely take up the issue by the end of its term next June, depending on how fast appellate courts rule and if they issue conflicting orders. Even if the high court rules the program is illegal, however, it’s possible justices could delay the immediate effect of the order, giving Congress a window to save it.
One senior GOP congressional source said little can be expected until there is another looming deadline for protections to begin expiring. When the courts removed the deadline, the “urgency” also dissipated, the source said.
But Curbelo hopes something could happen after the midterm elections.
“I think in the lame duck, there will be a major opportunity to address this in a definitive way, and I don’t think we should underestimate the importance of the work that was done in the Senate when they had their immigration exercise and the work that we did here,” Curbelo said. “That all sets up a possible resolution to all of this after the election. Which would be something to celebrate for sure.”
