Since its creation, the Deferred Action for Childhood Arrivals, or DACA program has been in constant legal conflict–and the battle lines have been sharply drawn in the Biden era. 

In the summer of 2021, a coalition of Republican Attorney Generals notched a victory when District Judge Andrew Hanen declared the DACA program unlawful, blocking new applicants into the program but allowing current DACA recipients to renew their enrollment [1]. However earlier this year, the same coalition of Republican Attorney Generals filed a lawsuit to block the federal government from allowing current DACA recipients from renewing their enrollment in the program [2]. Despite these legal challenges, the Biden administration is expanding federal healthcare coverage to DACA recipients, showing zero indication of wavering from their immigration policy [3].  With this new legal challenge, DACA is facing the biggest threat to its existence and could be given the death knell pending Judge Hanen’s decision. It is necessary for DACA to be terminated because of its illegality, and because it makes for poor policy. 

DACA is an executive memorandum enacted by the Obama administration in 2012 to protect “Dreamers,” illegal aliens who were brought as minors to the United States by their parents [4]. This subset of illegal aliens has the ability to receive a two-year, renewable period of deferred action on deportation, and receive a work permit. If they continue to meet certain conditions, they can renew their DACA status and continue to live and work in the United States. Despite President Obama’s attempt to portray this program as just, it is anything but when it comes to the President’s primary constituents: the American citizenry. 

From the start, DACA was always on tepid legal ground. After Congress repeatedly rejected his immigration reform efforts, Obama decided to forego the legislative process and enact DACA via executive action in 2012. Obama was even cognizant of the implications of such a sweeping order. In October 2010, responding to demands he wield executive action to deliver his immigration agenda, he declared "I am not king. I can't do these things just by myself” [5]. Despite this proclamation, Obama created the DACA program two years later. Such an executive order is illegal; as discussed earlier, Judge Hanen declared the program unlawful, and a three-judge panel for the Fifth Circuit Court of Appeals upheld his decision [6]. The reasoning behind affirming Hanen’s decision was that “Congress determined which aliens can receive these benefits, and it did not include DACA recipients among them,” and they “agree with the district court’s reasoning and its conclusions that the DACA Memorandum contravenes comprehensive statutory schemes for removal, allocation of lawful presence, and allocation of work authorization [7].” The courts have never been clearer - there is no legal foundation for DACA.  

While understanding the legality behind DACA is important, it’s also worth analyzing the program itself, and the harm it inflicts on the American people. 

First and foremost, DACA has operated as a motivating cause that attracts a person to migrate to another region or country, making it a “pull factor” for more illegal immigration. The logic is simple: rewarding bad behavior encourages more bad behavior. In Fiscal Year 2011, the Border Patrol apprehended 16,000 unaccompanied minors [8]. After Obama enacted DACA in June of 2012, the number went up to 24,000. In FY 2013, it shot up to 39,000 and ballooned to 68,500 in FY 2014. This indicates that DACA directly incentivized increased migration of unaccompanied minors as foreigners wished to take advantage of American immigration policy. 

Many contend that DACA was not the reason for this surge in migration. DACA proponents usually point to three things–migration of unaccompanied minors was going up before DACA, those entering the US post-DACA would not be eligible for the program, and the conditions of their home country operated as push factors. 

First, addressing the fact that the migration of unaccompanied minors was going up before DACA was enacted. From October 2011 to June 2012, the number of unaccompanied minors went up by 93%, to 5,252 compared to the same period the year before [9]. Although this is a large increase, it is important to recognize that using this statistic to disprove DACA as a pull factor is incredibly misleading. While it is a notable percentage increase, it was only an increase of about 3,000 minors in absolute terms. Compare this to the astronomically larger numerical increases after DACA to the tune of tens of thousands, and it is clear that DACA ushered in an unprecedented wave of new migration. Furthermore, an explanation for the 93% increase could be attributed to two things. First, there was a credible bipartisan effort to pass the DREAM Act in 2011 [10]. While it did not end up going into effect, the chance of an amnesty becoming law surely factored into the decision of foreigners wishing to illegally immigrate to the US. But second and more importantly, two large states, California and Illinois, passed their own DREAM acts, giving huge education benefits to illegal aliens in their respective states [11]. While not federal amnesty bills, these two states (one bordering Mexico) can be enough to explain the increase of unaccompanied youths preceding DACA. 

The second argument is that those who entered after DACA was enacted would not be eligible for the benefits under the program, as a recipient of DACA must have resided in the United States continuously from June 15, 2007, to June 15, 2012. The problem with this is that it fundamentally misunderstands how amnesty operates as a pull factor. The passage of the 1986 Immigration Reform and Control Act (IRCA) tells us how this works. The IRCA gave amnesty to nearly three million illegal aliens [12]. Opponents of the bill at the time, like Senator Jesse Helms (R-NC), argued that amnesty would “establish a dangerous precedent which could well encourage additional illegal immigration [13]” and Senator Phil Gramm (R-TX) stated that “there may be those in other countries who will say that since we granted amnesty once, maybe we will do it again [14].” Helms and Gramm were vindicated, as despite the IRCA being touted as a one-time legalization program that would fix the US’s border problems, it did nothing to halt illegal immigration [15]. The number of illegal aliens went from 5 million in 1986 to 11.1 million in 2011 [16]. Similarly, DACA flicked a switch in the heads of millions of foreigners. If they entered the United States, they too have the possibility of getting a track to citizenship. 

The third argument attempts to paint the domestic conditions of foreign countries as the explanation for the increased surge in unaccompanied minors. It would be uncharitable to argue this does not play a role. After all, they are coming [17] from poverty-stricken [18] countries like El Salvador, Honduras, and Guatemala, well known for their high violent crime rates [19]. It makes sense they would like to come to a country with better standards of living. The problem with this argument when addressing the post-DACA surge is that those conditions are natural to those countries. There was not a large enough increase in the crime rate or decrease in economic conditions in those countries during the time period succeeding DACA that would justify the large increase in unaccompanied minors from these countries. 

It is clear that DACA operates as a pull factor, and the Biden administration’s continued defense and expansion of the program will only encourage more illegal immigration to our country. FY 2022 had the highest-ever number of unaccompanied minors entering this country–nearly 130,000 [20]. This is an unsustainable amount of illegal immigration that causes a significant strain on resources. These resources should be used to help citizens, not those who have broken the law. The Federation of American Immigration Reform, or FAIR, released a report earlier this year detailing the fiscal costs of illegal immigration on the American taxpayer [21]. They found that the net cost of illegal immigration was at least $150.7 billion dollars, costing each American taxpayer about $1,156 per year. The costs are wide-ranging, from “emergency medical care to in-state tuition; from incarcerating illegal aliens in local jails to federal budgets that pay out billions in welfare every year.” Essentially, although illegal aliens contribute a non-negligible amount of revenue to governments, it is massively outweighed by administrative costs, along with the public benefits they drain from local, state, and federal governments. While DACA does not encompass most illegal aliens, it certainly has facilitated increased illegal immigration to the United States, and that has imposed costs on the American people. 

It is also important to examine the positive perception that DACA proponents wish to cultivate of  “Dreamers.” DACA proponents like to paint them as model citizens, that they represent the “best of America [22].” However, this is not the reality.

 United States Citizenship and Immigration Services (USCIS) released crime data on DACA recipients, which shows that many DACA recipients have a propensity toward criminal behavior [23]. Nearly eight percent of DACA recipients were arrested in the past, and about one percent of approved DACA requestors have an arrest in any given year. Specifically, “10 were approved who had an arrest for murder, 31 for rape, 15 for a gang offense, 23 for arson, 40 for car theft, 38 for organized criminal activity, two for child pornography, 95 for embezzlement, 187 for robbery, 454 for stolen property, 979 for weapons-related offenses, 1,173 for burglary, 2,378 for DUI, 6,629 for theft-larceny, and 6,276 had a total of three or more arrests.” Furthermore, former USCIS director L. Francis Cissna admitted that “we let those with criminal arrests for sexually assaulting a minor, kidnapping, human trafficking, child pornography, or even murder be provided protection from removal [24].” 

Data shows that 2,127 DACA recipients have had their status revoked due to criminal activity, but only 30% of them were removed from the country or were in ICE custody as of November 2017 [25]. Many of them are hardened criminals still at large and involved with dangerous gangs, such as MS-13 [26]. 

It is also worth examining the educational attainment of DACA recipients. The research tells us that the average DACA recipient is less educated than the average American [27]. DACA recipients have nearly identical high school degree attainment compared to US citizens. However, when you look at collegiate education, there is quite a disparity - 12.5% of DACA recipients had a bachelor’s degree or higher, compared to 29.6% of Americans of the same age range.  The study even acknowledges that the sample of DACA recipients it collected data on was likely more educated than the total population of DACA recipients, which means the disparity is likely even higher. 

The general economic conditions of DACA recipients are also concerning. The same study measuring educational attainment also looked at the economic status of DACA recipients, and it found that 73% of them live in low-income households (defined as qualifying for free lunch in high school) [28]. This is especially troublesome in light of the Biden administration’s expansion of federal healthcare benefits to DACA recipients. It is highly likely based on the factors above that they will access these benefits at a rate higher than US citizens, draining taxpayer funds to public benefits for illegal aliens. 

It is pertinent that the courts nullify DACA. While they have taken steps in the right direction by pausing new applicants, they must go further. It is blatantly illegal, incentivizes greater illegal immigration, and frames its recipients in an unfairly charitable manner. The effects of DACA have placed large costs on state and federal governments and trade-offs with resources that can be channeled into more effective programs that help the American people, not illegal aliens. 

As President Trump said, “Americans are dreamers, too.”