The Fate of the “Dreamers” Is Likely Headed to the Right-Dominated Supreme Court

Part of the Series

Human Rights and Global Wrongs

Eleven years after Barack Obama launched the Deferred Action for Childhood Arrivals (DACA) program, six years after the Trump administration tried to rescind it, and five years after it began wending its way through the courts, the fate of the “Dreamers” is now likely headed to the Supreme Court.

On September 13, Judge Andrew Hanen of the Federal District Court in Houston ruled in Texas v. U.S. that Obama did not have the legal authority to create DACA, a program which has protected hundreds of thousands of undocumented youth from deportation. Although this is bad news for the Dreamers (undocumented immigrants who were brought to the U.S. as children and grew up studying at U.S. schools), Hanen didn’t order that DACA immediately be terminated. Those who have already applied can keep their status and renew it but new applications will not be accepted. Hanen’s ruling will invariably be appealed.

Obama instituted DACA to protect from deportation undocumented people who were brought to the United States as children, either entering the U.S. without papers or overstaying their visas. Most of the “Dreamers,” as DACA recipients are called, are now in their 30s. The majority were brought to the U.S. from Mexico. Some came from other Latin American countries and many hailed from Asia. More than 800,000 young people have benefited from DACA and 600,000 of them are currently enrolled in the program.

In order to qualify for DACA, applicants must not have committed a serious crime; must generally be at least 15 years old at the time they apply; must have been no older than 30 as of June 15, 2012; must have continually resided in the U.S. since June 15, 2007; must have been physically present in the U.S. on June 15, 2012; and must either be enrolled in school, have graduated from high school, have a G.E.D. or have an honorable discharge from the U.S. military.

DACA shields the Dreamers from deportation (“deferred action”) and permits them to get work permits for a renewable two years at a time. Many of them work in technology, manufacturing and health care industries.

In 2020, the Supreme Court rejected Trump’s rescission of DACA and held that the Trump administration had not sufficiently justified terminating the program. In the Supreme Court’s 5-4 ruling, however, the high court did not decide whether Obama had legally created DACA.

John Roberts authored the majority opinion, in which the four liberal members — Sonia Sotomayor, Elena Kagan, Stephen Breyer and Ruth Bader Ginsburg — joined. Breyer and Ginsburg are no longer on the court. Clarence Thomas, Samuel Alito, Brett Kavanaugh and Neil Gorsuch, all current members of the court, dissented.

“We do not decide whether DACA or its rescission are sound policies,” Roberts wrote. “We address only whether the agency complied with the procedural requirement that it provide a reasoned explanation for its action.” The majority ruled that Trump’s attempted rescission of DACA violated the Administrative Procedure Act (APA) because it was “arbitrary and capricious.” The court also found that the Trump administration failed to assess the existence and strength of the Dreamers’ reliance on DACA and weigh any reliance against competing policy concerns. And it stated that the Trump administration failed to consider the possibility of deferring deportations even if benefits such as the right to work were removed from the program.

Dreamers, Roberts wrote (quoting a brief), had “enrolled in degree programs, embarked on careers, started businesses, purchased homes and even married and had children” in reliance on DACA. If recipients were excluded from the workforce, Roberts noted, it could result in the loss of $215 billion to the economy and $60 billion in federal tax revenue over the next 10 years.

In 2021, Judge Hanen of the Federal District Court in Houston ruled in favor of the nine Republican-led states that sued in 2018 to overturn DACA because the Obama administration had failed to comply with the notice-and-comment period required by the APA. The plaintiff states —Texas, Alabama, Arkansas, Kansas, Louisiana, Mississippi, Nebraska, South Carolina and West Virginia — claimed that DACA inflicted millions of dollars in education, health care and other costs on them.

The Mexican American Legal Defense and Educational Fund and the state of New Jersey, who are defending the program, argued that the nine plaintiff states had failed to introduce evidence that any of their alleged costs were attributable to DACA recipients.

If the Supreme Court ultimately strikes down DACA, it will be a devastating blow to hundreds of thousands of Dreamers.

Joe Biden’s Department of Homeland Security (DHS) enacted a new version of DACA — the “Final Rule” — which was to become effective in 2022, in an attempt to bolster the program’s legality. Unlike the Obama memo that established DACA, the Final Rule did have a notice-and-comment period to comply with the APA. The Final Rule hasn’t gone into effect, however.

In 2022, the U.S. Court of Appeals for the Fifth Circuit affirmed Hanen’s 2021 decision and remanded the case back to Hanen to review the legality of Biden’s Final Rule.

Hanen was not persuaded that the Final Rule cured the legal defects in the Obama administration’s initiation of the program. “There are no material differences” between the 2012 Obama memorandum that established DACA and the Final Rule, Hanen wrote in his September 13 opinion, adding: “The executive branch cannot usurp the power bestowed on Congress by the Constitution — even to fill a void.” Hanen ruled that the DACA program either stands or falls as a whole. None of its provisions — for example, the benefits section — can be severed without ending the relief from deportation as well, the ruling stated.

Amy Coney Barrett, now on the court, will probably agree with Hanen, which would make five votes, assuming the four dissenters in 2020 vote consistently.

If the Supreme Court ultimately strikes down DACA, it will be a devastating blow to hundreds of thousands of Dreamers. DACA “strengthens our economy, our communities and provides a way for people who came as children to work, study, live their lives and support their families,” Vanessa Cárdenas, executive director of the immigrant advocacy organization America’s Voice, said.

The Biden administration will certainly appeal Hanen’s ruling to the Fifth Circuit. Regardless of how that court rules, the case will then go to the Supreme Court, which appears likely to affirm Hanen’s decision. Amy Coney Barrett, now on the court, will probably agree with Hanen, which would make five votes, assuming the four dissenters in 2020 vote consistently. Roberts, who voted with the liberals in 2020, might now concur with the other right-wingers and vote to uphold Hanen’s ruling.

“Unless congressional action is taken, hundreds of thousands of individuals risk being deported from the only country they call home,” 13 progressive student groups in North Carolina wrote in The Chronicle. “We urge our congressional leaders to provide a pathway to citizenship and promote a nation where compassion prevails over partisanship. DACA gives recipients the opportunity to pursue a better life, allowing them to prosper and thrive in the country they call home. Dreamers deserve to be protected.”