early and often

Biden Calls Out MAGA Judges, Democratic Congress on DACA

People protest President Trump’s decision on DACA in September 2017 in New York City. Photo: Kena Betancur/VIEWpress/Corbis via Getty Images

Another uninspiring moment in the long court battle over the Deferred Action for Childhood Arrivals initiative occurred October 5 when a three-judge panel of the Fifth Circuit Court of Appeals affirmed a lower-court judgment that Barack Obama’s executive order protecting Dreamers (young undocumented immigrants with clean records) was unconstitutional. It was the first major judicial action on DACA since June 2020, when the U.S. Supreme Court struck down Donald Trump’s effort to quash DACA via his own poorly drafted executive order. But despite the loud headlines, the ruling did not have any immediate effect on the 611,270 current DACA enrollees because of prosecutorial discretion to set enforcement priorities in immigration cases, as the Washington Post noted:

The 5th Circuit’s recent decision both announces a likely end to the program and delays a more definite ruling. Although the decision agreed with the lower court’s “excellent opinion” that DACA suffers “fundamental substantive defects” that make it unlawful, the 5th Circuit sent the case back to the district court for further consideration in light of pending regulations from the Biden administration. These regulations, finalized in August and set to take effect Oct. 31, would almost exactly replicate the existing DACA. However, they contain some changes meant to repair legal flaws identified by the courts.

Assuming the lower court holds the revised DACA unconstitutional, that decision will likely return to the Fifth Circuit and might then be reviewed by the Supreme Court. So the residual effect for the time being is the status quo: no new DACA enrollments but no abrogation of existing DACA rights. Yet for Dreamers and other undocumented immigrants, a sword of Damocles remains.

In response, President Biden lashed out at the Fifth Circuit and the Republican-governed states that have been fighting DACA in the courts, calling the peril to Dreamers “just another example of the extreme agenda being pushed by MAGA-Republican officials.” He also said, “It is long past time for Congress to pass permanent protections for Dreamers, including a pathway to citizenship.”

Congress, you may recall, is controlled by Democrats. And one of the great forgotten sagas of the long-stalled FY 2022 budget-reconciliation bill (which ultimately became the Inflation Reduction Act) is when, as Politico put it, the Senate parliamentarian struck “a provision that would extend work permits and provide temporary protection from deportation for certain undocumented immigrants who came to the United States before January 2011” as impermissibly non-germane to the budget process.

This is not a compelling excuse for failure to many immigrants’-rights advocates, including the protestors who got themselves arrested in Washington, D.C., after the Fifth Circuit ruling came down. Per the Post:

Thirteen people were arrested Thursday for blocking traffic on Capitol Hill outside the Hart Senate Office Building while protesting a federal appeals court ruling this week that said a program to protect young immigrants, known as “dreamers,” from deportation was unlawful.

Protesters demanded Democrats in Congress pass legislation that would provide a pathway to citizenship for young immigrants.

Presumably, Democrats can make the possibility of a legislative replacement for DACA a talking point for 2022 candidates in states with a significant number of potential beneficiaries. But it’s a tricky issue. Most Republicans — even Donald Trump — are in theory in favor of protection for Dreamers. They cannot, however, stop holding DACA hostage to their more invidious immigration proposals, from Trump’s border wall to the declaration of a “border crisis” allegedly attributable to Democratic “open borders” policies. Biden and his congressional allies need a feasible strategy for keeping their promises to Dreamers. Maintaining fragile protections against deportation of immigrants via perpetual litigation is cold comfort to those who know no other home.

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Biden Calls Out MAGA Judges, Democratic Congress on DACA