The Fight to Save DACA Isn’t Over

9 mins read

Image credit: BeeBright

We were all dreading this moment.

Last week, the Supreme Court issued its decision in Department of Homeland Security, et al. v. Regents of the University of California, better known as the DACA case.

This lawsuit set out to determine the status of approximately 700,000 immigrants who were brought to the United States regardless of whether they wanted to come, and who were sometimes so young that they were even unaware for decades that they were not citizens.  It also addressed approximately 4 million immigrants who have children that are American citizens or lawful permanent residents.

The president’s animus towards immigrants, especially from South and Central America, is of course well known. He infamously separated immigrant children from their parents and put them in “detention facilities” that experts likened to concentration camps. He has referred to Mexican migrants as “criminals, drug dealers [and] rapists.” He has blamed them for bringing diseases to the United States. He has accused them of human trafficking and called them “animals.”

So it was no surprise when, even though he promised to treat DACA recipients “with heart,” that he ultimately reneged and had his attorney general declare the DACA and DAPA programs illegal. And, since he has appointed two Supreme Court justices during his term, he had the Court stacked with the kind of justices he believed would rule in his favor.

But a funny thing happened on the way to deporting DACA recipients.

The Supreme Court ruled against the Trump administration.

So we should savor this moment. It is a victory for all immigrants who have fought the cruel, inhumane, racist policies of this administration. It is justice for those who have been smeared, imprisoned, beaten, dehumanized and abused by the people carrying out the xenophobic goals set forth by Trump. It gives hope to those who wait in squalid, dangerous conditions at places like Matamoros, Mexico, trying to survive gangs, poverty and illness while awaiting the chance to plead their asylum cases.

But understand this: the fight to save DACA and DAPA is far from over.

The battle continues because, in its ruling, the Supreme Court did NOT declare that DACA and DAPA are legal. Nor did they mandate that the immigrants protected by these programs shall become citizens. They didn’t even guarantee that those affected can remain in the United States for the rest of their lives. In fact, they found quite the opposite: the Court specifically indicates that the U.S. attorney general has the power to declare that these programs are illegal.

I know. I can see your face scrunched in bewilderment after having read that sentence. You’re thinking, “How can the Court keep DACA if the attorney general finds it illegal?”

Here’s how. When Jeff Sessions was attorney general, he made the decision that DACA was illegal and started the process to terminate it. That decision was sent to the Department of Homeland Security (DHS), the agency which effectuates immigration policy. But it seems that DHS made a determination that keeping DACA recipients in America is a policy “‘especially justified’ for ‘productive young people’ who were brought here as children and ‘know only this country as home.’” The Supreme Court, according to Justice Roberts, decided that under administrative law, DHS cannot simply change its mind. It has to consider whether there are valid alternatives to consider. And in this case, according to the Court, it never even thought about any alternatives; it simply sought to terminate DACA — and that wasn’t acceptable.

Regrettably, the Court did not analyze whether president Trump’s animus toward immigrants was a factor in the decision to terminate DACA. Nor did it consider the inherent unfairness such a decision might have on people who built lives in America, anticipating that DACA would protect them. This of course includes thousands of healthcare workers who have risked their lives during the COVID crisis and countless others who joined our military forces. The Court also ignored the sheer immortality of deporting people who spent their lives here. But for the moment, because the Court felt DHS didn’t do its job properly, DACA and DAPA survive.

It’s far from perfect. It will undoubtedly cause a lot of controversy. But there’s no denying that Thursday was a wonderful day for millions of people who are Americans in every way except the very most technical sense. I would also argue that, in a country that prides itself on its immigrant heritage, it was a great day for America.

Of course, the president immediately attacked the Supreme Court, railing against the justices and the Democrats, and claiming that there was no basis in law to support the decision. He also vowed to “start the process all over again.”

That’s why this battle is not yet finished.

Now, there are two ways to overcome Trump’s anti-immigrant discrimination, and his hatred and xenophobia in order to preserve DACA and DAPA.

The first is for Congress to enact legislation to protect these programs. While that would be the optimal solution, and indeed the House has already passed the DREAM Act, I have no confidence that a Senate led by Mitch McConnell would even bring it up for a vote. Even if he did, I doubt Trump would sign it, and I don’t see Congress overriding a veto. So I don’t believe DACA legislation would get passed this year.

So what’s the second way to preserve DACA and ensure that the immigrants who have already given so much to this country don’t get deported?

Vote. Plain and simple.

If Donald Trump is out of office in 2021, Joe Biden will be president. It was President Obama and Vice President Biden who started DACA in the first place. There is no question that, should Biden be president, these programs will be saved. Moreover, if Democrats can keep the House and take back the Senate, then DACA legislation could become a reality.

Just think of it. A nation of immigrants living up to its implied promise that all oppressed persons who come to its shores can breathe free. Now THAT, indeed, would be a truly beautiful day.

Many of us promised to vote like our lives depend upon it. And for some, they do. But we must understand, it’s not just our lives that depend on us exercising our right to franchise. It’s not even just the lives of millions of immigrants that depend upon our ballots. It’s much, much more.

Joe Biden has called this year’s presidential election a battle for the soul of this nation.

The ongoing fight to save DACA puts our hearts right on the line as well.


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