DACA Failed, But Must Be Fixed

Duke Fishman, Sep 16, 2020

One of the biggest issues on the minds of voters during every election cycle in recent years has been illegal immigration. In fact, according to the Pew Research Center, 52% of registered voters say immigration is "very important" to their vote in the 2020 election [1]. Despite the high level of importance voters place on addressing this issue, the country is polarized on how to solve the immigration crisis. The Deferred Action for Childhood Arrivals program, more commonly referred to as DACA, was a policy that attempted to address a massive issue in regards to undocumented immigrants in America. This program is an Obama administration policy that began in 2012 in order to protect people brought to America illegally as children from being deported due to their citizenship status. Recipients are given the renewable opportunity to remain in the country for two years at a time and to obtain work permits and employer based health insurance [2]. The program has faced a significant amount of scrutiny, and less so because of its purpose and goals. Rather, the act of providing administrative amnesty to millions of illegal aliens was simply an action that the president of the United States lacks the constitutional and legal authority to implement [3]. The Constitution specifically assigns plenary authority over immigration to Congress, and thus the president cannot sign an executive order such as DACA unless Congress has delegated that power to the executive branch [3]. In response to pressure from over 10 state officials planning to sue the federal government over the program's legality, Donald Trump rescinded it within a six month time frame. He claimed that the process of gradually slowing it down would hopefully give "a window of opportunity for Congress to act" [4]. This action by Donald Trump opened the door to a brand new legal debate. In essence, Trump was making a calculated move: by rescinding DACA, he was appealing to his hardline base, but simultaneously avoiding any scrutiny from moderates and Democrats because he was tying his hands by claiming it was a move forced upon him by the law. The question of whether the Trump administration's explanation for rescinding DACA was reasonable led to a series of challenges in courts across the country that worked their way up to the Supreme Court. A common misconception most Americans had when news about this Supreme Court case Department of Homeland Security v. Regents of the University of California broke was that the court would be ruling on the legality of DACA itself. Media headlines and protest signs advanced the narrative that the fate of DACA recipients was on the line with this decision, without fully understanding the nuanced issue the Supreme Court was dealing with. In a 5-4 vote, the court determined that the Department of Homeland Security's procedure to rescind DACA was "arbitrary and capricious" under the Administrative Protection Act. Chief Justice John Roberts provided an important explanation in the opinion of the court, writing, "The dispute before the Court is not whether DHS may rescind DACA. All parties agree that it may. The dispute is instead primarily about the procedure the agency followed in doing so" [5]. The concurring opinion argued that reliance interests have caused the DHS to require proper justification for disbanding the program given how many years people have operated under the expectation that they will receive renewable deferred action from deportation. Most significantly, the Supreme Court rejected the argument that DHS's decision to rescind DACA violated the equal protection guarantee of the Fifth Amendment [5]. In turn, this ruling brings up two important points. First, the termination of DACA is inevitable, as the decision only is delaying an eventual end to the program which will come once proper procedure is followed. The Fifth Amendment cannot be used as an argument against DACA's termination, and thus the agency has full discretion to eventually eliminate the program. Secondly, it brings up the argument about reliance interests. As was previously mentioned, the argument over reliance interests, which is a collection of the many benefits (including work visas and legal presence) granted to DACA recipients which have led them to operate, and in essence rely on the program to guide their decisions and livelihoods. If the program was abruptly ended, people who have planned out their futures-what schools they will go to, what jobs they will work, what houses they will buy, will have their lives completely altered. Nevertheless, this argument lacks legal justification for why DHS's reasoning was flawed. Allowing reliance interests to be litigated against ending the temporary program would thus create a vicious cycle in which the program could never be logically considered temporary [6]. In this case, rescinding a temporary program can be prevented because reliance interests are present, except, reliance interests never go away. In fact, with time they only grow. The temporary nature of the program, then, will not be temporary at all. Despite the flaws with using reliance interests as a legal justification for the Supreme Court's decision, the topic of reliance interests is important in the immigration debate in the US. Millions of undocumented immigrants have been operating within systems that have allowed them to live and be naturalized in the United States. Many states and cities have policies allowing illegal immigrants to live without fear of deportation, attend public schools, and receive a variety of other benefits normally granted only to citizens. These undocumented immigrants have grown up and lived in the United States for years, many assimilating well into American culture and serving as vital workers in the economy. All of these immigrants have reliance interests that are continuing to grow and become more severe, and simultaneously, Americans are becoming more sympathetic to them. For example, a noticeable shift in Republican support for DACA has occurred in the short time since the 2016 election. In 2017, 43 percent of Republicans supported DACA [7]. However, as of a Politico poll from June 2020, the support for Dreamers staying includes 69% of Trump 2016 voters and 68% of Republicans [8]. The outdated US immigration system is what has led to failed policies such as DACA. Undocumented immigrants in the US are experiencing very unique, individualistic situations that are not addressed in current immigration policy, which paints all illegal immigrants with the same broad brush. Americans are continuing to become more compassionate towards undocumented immigrants who have been the beneficiaries of policies that have allowed them to live in the United States. DACA is unconstitutional and will get rescinded, therefore, it is important for Congress to act immediately to address the immigration crisis in a targeted way that actually takes into account the reliance interests generated by the variety of immigration policies enacted by the federal, state, and local governments. The United States Congress must pass legislation that grants temporary citizenship to DACA recipients, but also provides a pathway to citizenship for them. Furthermore, Congress should create legislation that offers legal status to undocumented workers living in the United States based on a variety of factors including age, family size, tax contributions, time they have lived in the United States for, and criminal record. Ultimately, the immigration debate is becoming far more nuanced, and it is important for both sides to acknowledge that. Given that Republicans have a hardline stance in regards to immigration policy, it is important for them to adapt to the changing opinions of their party's voters. Policy proposals have to reflect the complex situations that undocumented immigrants living in the United States are experiencing. Support for DACA is a prime example of how a more individualistic application of immigration policy can still abide by Republican values but approach the immigration debate in a sensible and compassionate way.


1. “Important Issues in the 2020 Election.” Pew Research Center - U.S. Politics & Policy. Pew Research Center, October 8, 2020. https://www.pewresearch.org/politics/2020/08/13/important-issues-in-the-2020-election/.
2. Dickerson, Caitlin. “What Is DACA? And How Did It End Up in the Supreme Court?” The New York Times. The New York Times, June 18, 2020. https://www.nytimes.com/article/what-is-daca.html.
3. Spakovsky, Hans von. “DACA Is Unconstitutional, as Obama Admitted.” The Heritage Foundation. Accessed January 2, 2021. https://www.heritage.org/immigration/commentary/daca-unconstitutional-obama-admitted.
4. Samuelson, Kate. “Donald Trump's Full Statement on Rescinding DACA.” Time. Time, September 5, 2017. https://time.com/4927495/donald-trump-statement-daca-rescind/.
5. “Department of Homeland Security v. Regents of the University of California.” Ballotpedia. Accessed January 2, 2021. https://ballotpedia.org/Department_of_Homeland_Security_v._Regents_of_the_University_of_California.
6. Cadman, Dan. “Does Granting Temporary Immigration Benefits Truly Create 'Reliance Interests' That Must Be Extended into Infinity?” CIS.org, December 31, 2019. https://cis.org/Cadman/Does-Granting-Temporary-Immigration-Benefits-Truly-Create-Reliance-Interests-Must-Be.
7. Frankovic, Kathy. “Republicans, but Not the Country Overall, Would Support a Supreme Court Ruling against DACA.” YouGov, November 13, 2019. https://today.yougov.com/topics/politics/articles-reports/2019/11/13/republicans-not-country-overall-would-support-cour.
8. AV Press Releases. “DACA Poll Roundup: Overwhelming and Consistent Support for Dreamers and DACA in Poll after Poll.” America's Voice, June 18, 2020. https://americasvoice.org/press_releases/daca-poll-roundup-overwhelming-and-consistent-support-for-dreamers-and-daca-in-poll-after-poll/.