Security patrols outside the Supreme Court building in Washington, June 29, 2015. (AP Photo / Jacquelyn Martin)
On Monday the Supreme Court slapped away the White House’s attempt to circumvent the normal court process in the legal fights over DACA. In the short term, it means that the Trump administration must continue to abide by two federal judges’ injunctions requiring the federal government to accept DACA-renewal applications. But the legal battles are myriad and complex, and today’s action is just the beginning.
DACA, which stands for Deferred Action for Childhood Arrivals, offers two-year work permits and protections from deportation to undocumented people who came to the United States as children. Some 700,000 young people have benefited from the Obama-era program, which stormed to the forefront of the national immigration conversation when Trump shuttered the program in September. At the time, he gave all enrollees whose DACA protections would expire before March 5 exactly one month to reapply for another two-year term. Everyone whose DACA would expire after March 5, 2018, and anyone who had never had a chance to apply at all, would never be eligible to apply.
In January, US District Court Judge William Alsup, responding to one of a handful of lawsuits challenging Trump’s decision to dismantle the program, issued an injunction that leaves it to the courts to sort out the legal questions at play. The injunction required the federal government to partially revive the program so that three major groups of young people could reapply to renew their DACA status: (1) those whose DACA expired before March 5, 2018, but who did not get a chance to reapply in the 30-day window the Trump administration offered, (2) DACA enrollees whose protections expired after March 5 who were barred from reapplying at all, and (3) DACA enrollees whose work permits expired in the year prior to Trump’s dismantling of the program. A few weeks ago, a New York federal judge issued a similar injunction.
Attorney General Jeff Sessions not only appealed Alsup’s order but also made the extraordinary request to the Supreme Court asking it to hear the Department of Justice’s appeal without letting the case wind its way up through lower courts. The Department of Justice maintains that DACA is unconstitutional and that President Obama, who initiated the program in 2012, had no right to do so.
On Monday the Supreme Court effectively told the DOJ to settle down and let the lower courts sort out things first. Its action also leaves Alsup’s injunction, as well as New York federal judge Nicholas G. Garaufis’s injunction, in place.
“Our foundational premise from the beginning has been: DACA is fully legal, and Trump’s attempts to end it were fully illegal,” Xavier Becerra, California’s attorney general who has taken the lead on the California lawsuit challenging Trump, said Monday.
“We hope this has become clearer with each step of the way. Whether it was the nationwide injunction California got for 800,000 Dreamers so they could remain and apply to re-up their status, or whether it was the latest victory where SCOTUS told them to follow the regular process,” Becerra said.
The current injunctions will be in place for at least a few more months, advocates say, while the New York and California lawsuits work their way through the courts. Two other similar lawsuits in DC and Maryland are also on deck as well.
The legal battles have taken place alongside efforts to find a permanent solution in Congress. Despite calling on Congress to find a bipartisan solution for the chaos he’d created when he canceled DACA in September, Trump has rejected multiple bipartisan agreements in recent weeks that would offer some subset of the young undocumented population permanent legal status.
Leading up to the temporary injunctions, experts warned that every day after October some 120 young people would lose their protections, while the numbers would jump up significantly come March 5. Every DACA recipient enrolls on an individual basis, and loses it on a rolling basis. While March 5 is the date that has hung in the air, all 700,000 undocumented young people will not immediately lose their status that day. With these injunctions reopening the window for renewal applications, it’s not entirely clear what those numbers look like. One of Judge Alsup’s requirements called for quarterly reports from DHS on re-enrollment statistics. The first should be released soon, said Marielena Hincapie, executive director of the National Immigration Law Center.
Still, while activists pour into Capitol Hill week after week to lobby for a legislative solution and advocates fill the courts across the country, Trump’s decision in September has had deep consequences.
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Beyond the 700,000 young people who’ve had their lives thrown off course by the dismantling of the program, there are about a million more young people who are eligible who never had a chance to apply for DACA at all. DACA application fees are $495, prohibitively expensive for many young people. And there are young people are still just aging into eligibility for the program, which requires a high-school diploma or GED. The temporary injunctions offer them nothing.
For all of these undocumented young people, the Democrats’ bungled efforts to win a deal for Dreamers has yielded nothing. And Trump’s exhortations and inaction have amounted to nothing; it’s almost as if this chaos, panic, and terror is what the White House wanted all along.
Julianne HingTwitterJulianne Hing is a contributing writer at The Nation, where she covers immigration and the politics of the changing demography of the United States.