In Brief

How Will Biden Handle DACA?

The Obama-era policy protecting young undocumented immigrants from deportation has faced a raft of legal challenges. It could now be up to the Supreme Court to decide the program’s fate.

In July, a federal judge in Texas ruled that President Barack Obama’s signature immigration policy is unlawful, threatening a program that has protected more than eight hundred thousand young undocumented immigrants from deportation. The case over DACA, or Deferred Action for Childhood Arrivals, could ultimately go to the Supreme Court.

What happened in the federal ruling?

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Responding to a suit by Texas and eight other states, U.S. District Court Judge Andrew Hanen directed President Joe Biden’s administration to stop granting new requests made under the DACA program, which provides protection from deportation and work permits to undocumented immigrants who arrived in the United States as children. Hanen called the program illegal, saying that Obama exceeded his authority when he created it through an executive order in 2012. 

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Current recipients, often referred to as Dreamers, will remain in the program. The 616,000 immigrants [PDF] who are already enrolled in DACA are still eligible to renew their work permits.

The Department of Homeland Security (DHS) can continue to accept new applications, of which there have been more than sixty-two thousand [PDF] since the program reopened in December 2020. (President Donald Trump suspended it for several years.) But DHS is temporarily prohibited from approving them, leaving applicants in legal limbo. 

What is DACA’s legal history?

Prior to DACA’s inception in 2012, Democratic lawmakers had been pressing unsuccessfully for more than a decade to pass the DREAM Act, a bill with similar effects. 

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Establishing DACA through executive order meant that the measure was vulnerable to reversal, and Trump suspended it in September 2017, calling it unconstitutional. The Trump administration did not end current recipients’ work permits and deportation protections, but it closed DACA to new applicants. 

This set off a flurry of court battles, culminating in a Supreme Court ruling in June 2020 that the Trump administration had not given adequate justification for ending the program. Though the decision allowed DACA to remain in place, the Supreme Court did not rule on the fundamental question of its constitutionality.

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The Trump administration resumed processing renewals but not new applications. Then, in December 2020, a federal court ordered the administration to reopen DACA to new applicants.

Last month’s ruling comes as the Biden administration has begun to review the backlog of applications. So far, 1,900 immigrants, making up just 3 percent of first-time applicants between January and May 2021, have been approved for DACA.

DACA recipients and their supporters march in butterfly wings by a banner that reads "here to stay" in front of the Supreme Court.
DACA recipients and their supporters celebrate outside the U.S. Supreme Court in June 2018. Reuters/Jonathan Ernst

What’s at stake?

Since its creation, DACA has benefited more than 800,000 immigrants. Without it, more than 640,000 current recipients would be at risk of deportation. These recipients are primarily from Mexico, and on average arrived in the United States when they were six years old.

Ending DACA would shut out an even larger number of prospective applicants. According to the Migration Policy Institute, the estimated DACA-eligible population stood at more than 1.7 million as of December 2020.

Some economists say that terminating the program would also have broader repercussions. The Institute on Taxation and Economic Policy [PDF], a Washington-based think tank, found that Dreamers paid as much as $2 billion in taxes in 2017. Other research estimates that deporting eight hundred thousand undocumented individuals would cost Immigration and Customs Enforcement (ICE) nearly $10 billion [PDF].

Many Republican lawmakers say the program encourages undocumented immigration, and contend that only Congress has the constitutional authority to change immigration law.

What’s next under the Biden administration?

Biden is expected to appeal the July ruling, and unless Congress takes action, DACA could head back to the Supreme Court.

Meanwhile, a historic influx of migrants at the southern border is threatening Biden’s promises to quickly reverse Trump-era restrictions. The U.S. Border Patrol reported 178,416 apprehensions in June, its highest monthly total in over twenty years. Even as the White House seeks to restore many asylum protections, it has warned would-be migrants not to make the journey.

The DACA ruling presents an additional challenge for Biden, who promised on the campaign trail to quickly grant Dreamers a path to citizenship. He is working to build support in Congress for his comprehensive immigration reform, which would increase legal immigration and give more than ten million unauthorized immigrants already in the country a pathway to legal status, including Dreamers.

Congress has not yet considered the bill and analysts say it will be difficult for it to win enough Republican support to pass. However, Democratic lawmakers plan to incorporate a narrower set of immigration reforms, including for Dreamers, in their 2022 budget package. Under budget reconciliation rules, these measures could pass with a simple majority in Congress—and without Republican support—if the Senate parliamentarian, an unelected official, decides it is allowed.

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