DACA changed everything in immigration law and politics
When President Obama strode into the Rose Garden 10 years ago Wednesday to announce the DACA program, he knew it was momentous. But he couldn’t have predicted just how much change it would bring.
After repeatedly saying he didn’t have the power to carve entire categories of illegal immigrants out of danger of deportation, he reversed himself amid his 2012 re-election campaign and decided that he did, in fact, have the power.
Deferred Action for Childhood Arrivals, or DACA, was the result. It granted a stay of deportation and extended work permits to young adult illegal immigrants who’d come to the U.S. as children, had kept a relatively clean rap sheet and had completed or were working toward an education.
At the time, it was supposed to be a bridge, granting hundreds of thousands of “Dreamers,” as they called themselves, a more firm foothold in the country that had become their home. The hope was that it was a forerunner of a broader immigration deal that would grant them, and others among the illegal immigrant population, a full pathway to citizenship, while improving border security.
The Dreamers got the foothold and became a political force in their own right — unable to vote, but incredibly powerful as a symbol.
But a decade later they’re still in legal limbo, Congress remains gridlocked and the border faces unprecedented chaos. Meanwhile, DACA has rewritten the legal landscape and changed the face of politics.
“DACA probably got Donald Trump elected,” said Andrew “Art” Arthur, who has been part of immigration policy for nearly 30 years as a government lawyer, congressional staffer, immigration judge and now resident fellow at the Center for Immigration Studies.
He pointed to data from the political analysts at FiveThirtyEight.com who said anger over immigration policy propelled Mr. Trump to the GOP nomination, and traced it back to DACA, which was the first in a series of immigration enforcement shifts that “really pissed off the American people.”
DACA helped usher in the era of executive action — the first of what Mr. Obama came to call his pen-and-phone approach to governing around, rather than with, Congress.
And DACA also tracked with the court backlash, with states looking to sue to derail administration actions, and judges increasingly willing to side with the states.
“I think in the past the court afforded administrations more leeway in exerting executive power on the immigration system — both Democrat and Republican administrations. There was a lot of deference, and I think we’ve seen in recent years more skepticism,” said Laurence Benenson, our VP of Policy and Advocacy at the National Immigration Forum.
DACA affected real people in real ways.
The day of Mr. Obama’s announcement, Dreamers held watch parties to see what the president would say. Many were overjoyed. Some, who just missed out on the age cutoff, were devastated.
Many of those lucky enough to make Mr. Obama’s cutoff date have treated it like a winning lottery ticket, securing jobs, buying cars and homes and deepening roots in what they consider their home country.
At the start of the pandemic, the Center for American Progress figured more than 200,000 DACA recipients were working in what could be deemed “essential” jobs such as health care and food-related services.
Dreamers have also worked on presidential campaigns and as interns on Capitol Hill. Hundreds have served in the U.S. military. And some have won admission to the bar as practicing lawyers.
“DACA recipients are in our churches, they’re in our communities, they are at our workplace, they open businesses, they’re consumers, their children, who are U.S. citizens, are in our schools,” said Mr. Benenson. “They’ve demonstrated the opportunity afforded by DACA is something Congress has made permanent.”
But 10 years in, it hasn’t happened.
“DACA was never intended to be a 10-year policy. It was intended to be a short stop-gap prior to Congress taking steps to pass meaningful immigration reform including protections for Dreamers,” Mr. Benenson said.
Mr. Arthur says that DACA sapped the impetus to get that kind of deal done.
For one thing, with the Dreamers no longer in danger of deportation, the most sympathetic cases had been taken care of. Perhaps more important, Mr. Obama’s move to use executive powers — ones he had disavowed just months before — to go around Congress soured the conversation on Capitol Hill.
“It really broke faith between the Obama executive branch and Congress,” Mr. Arthur said. “One, you shouldn’t be doing this because it’s not what we said, and two, we can’t trust you if we do change the law. Where are you going to find your next magical power from after this.”
Mr. Benenson countered that Congress has been close to a deal on Dreamers several times, including a 2013 bill that cleared the Senate and a 2018 proposal by Mr. Trump that would have traded a pathway to citizenship for border wall funding.
“I don’t think the existence of DACA has been a barrier to getting a Dreamer solution done,” Mr. Benenson said.
Support for legalizing Dreamers is overwhelming, with polls showing about three out of four Americans back giving them more permanent legal status. The trick has been figuring out how many people would qualify, and what kinds of border security and enforcement add-ons would be attached.
More than 800,000 people have been through the program, and as of the end of 2021, there were still 611,470 active DACA recipients. Nearly 500,000 of them are from Mexico, with the No. 3 country, El Salvador, far behind at 23,620.
A DACA grant lasts two years but is renewable. That means some people are getting ready to file their sixth application.
One of those is Angie Rodriguez, whose husband, Mario Carrillo, is campaigns director at America’s Voice.
“As many other families can relate, it’s difficult living life two years at a time, knowing that the future of DACA has long been in question,” Mr. Carrillo wrote in a piece for America’s Voice.
The article contained a note of caution, pointing to a decision by a federal judge in Texas last year who ruled that DACA was created illegally.
Judge Andrew B. Hanen said Mr. Obama skipped too many procedural steps, and besides the program ran afoul of federal immigration law — essentially agreeing with Mr. Obama’s stance in the years before his 2012 reversal.
“I am not a king,” the president had famously told Hispanic voters in 2010 as they pressed him for executive action to grant legal status.
Judge Hanen in his ruling said Mr. Obama had it right the first time. The judge vacated the DACA program — but issued a stay of his own ruling, allowing those already protected by DACA to remain under the protections. No new applications are being accepted.
An appeals court will hear oral arguments in the case next month.
The Supreme Court already had one shot at DACA, ruling in 2020 that Mr. Trump’s 2017 attempt to phase out the program was done illegally, cutting too many procedural corners.
Dissenting justices pointed out the irony that a program created illegally could not also be ended through the same procedural shortcuts.
That left Dreamers in the legal limbo that’s characterized their last 10 years.
“There should not be a 20th anniversary of DACA without a permanent solution,” Mr. Benenson said. “This is something that Congress needs to step in and provide a pathway to legalization.”