President Obama had insisted for years that he didn’t have the power to grant a broad tentative deportation amnesty for Dreamers — then just ahead of the 2012 election, and facing severe criticism from Hispanic leaders, Mr. Obama discovered he did in fact have the power.
Thus was born DACA, which has been in effect for five years as of Tuesday and has become perhaps the most controversial policy of the Obama era.
Nearly 800,000 young adult illegal immigrants have been protected by the program, giving them a chance to get driver’s licenses, legally hold a job, collect tax benefits — even to earn a law license or, in some special cases, to join the U.S. military.
But for opponents, the program is a symbol of Mr. Obama’s lawlessness and led directly to the surge of illegal immigrants that overwhelmed the country’s borders in 2014. They are cheering on a threat from Texas to challenge DACA in the courts if President Trump doesn’t announce a phase-out of the program by Sept. 5.
Immigrant rights activists rallied outside the U.S. Capitol on Monday and have a day of marches, speeches and photo-ops slated for Tuesday as they try to defend the program, calling on Mr. Trump to resist Texas’ legal threats, even in the face of piercing questions about whether DACA could survive a legal challenge.
“Make no mistake: This our home, and we are here to stay,” Greisa Martinez Rosas, director of advocacy at United We Dream, said as advocates laid out their plans for protests, including a demonstration at the White House on Tuesday.
The fight is playing out on political, economic and legal battlegrounds — with the most important deadline looming in court.
Though Mr. Obama’s 2014 deportation amnesty, a similar program known as DAPA, was ruled illegal, no challenge has ever been squarely mounted on the 2012 version. But Texas, which won that other DAPA case against Mr. Obama, is now demanding that Mr. Trump accede.
Pro-DACA lawyers wrote a letter to Mr. Trump on Monday pleading with him to defend the law no matter what, saying past presidents have used similar powers, albeit on a much smaller scale.
“The legal authority for the Executive Branch to operate DACA 2012 is crystal clear. As such, choices about its future would constitute a policy and political decision, not a legal one,” said the lawyers, led by Shoba Sivaprasad Wadhia, clinical professor at Penn State law school.
Other legal analysts, though, have told The Washington Times that there is little chance DACA can survive if Texas manages to expand its previous DAPA lawsuit.
Whereas DAPA applied to parents with children who had a legal right to be in the U.S., DACA recipients have no such ties, making their legal defense more tenuous.
Even Mr. Obama’s Justice Department office of legal counsel was skeptical of DACA, according to a footnote in a 2014 legal opinion that said it would be lawful only if it was granted on a case-by-case basis rather than as a matter of right based on someone meeting the criteria.
In practice, however, it’s been administered as a right — so much so that several lawsuits have been filed challenging the administration when it tried to deny a Dreamer DACA when he or she otherwise appeared to qualify.
New White House Chief of Staff John F. Kelly, when he was secretary of the Homeland Security Department, also signaled that he doubted the program could survive a legal challenge.
Lawyers who back DACA say their best hope is that courts don’t allow Texas to modify its DAPA lawsuit. That issue is already being fought out in a Texas court.
To gain DACA status, illegal immigrants had to be younger than 16 when they entered the U.S., had to have arrived before June 15, 2007, had to have been younger than 31 at the time Mr. Obama announced the policy in June 2012, had to either have a high school diploma or be enrolled in classes working toward one, and had to have kept clear of serious criminal entanglements.
Those approved were also granted renewable two-year work permits entitling them to hold down jobs, get a Social Security number, obtain a driver’s license and become eligible for tax benefits such as the Earned Income Tax Credit.
In many states, DACA status also earned in-state tuition to public colleges and universities.
There’s no question DACA has been a boon to the immigrants who have been approved. More than half said they were able to buy their first car, 12 percent said they bought a home and 6 percent said they started their own businesses, according to an October survey by the Center for American Progress and Tom K. Wong, an assistant professor at the University of California, San Diego.
Two-thirds got health insurance, and 61 percent said they were able to pursue educational opportunities that they wouldn’t have been able to get before, the CAP survey found.
Several students said they felt at personal dead ends until DACA allowed them to pursue college, according to a separate study by CAP and Roberto G. Gonzales, an assistant professor at Harvard University, that followed hundreds of specific DACA recipients.
A Morning Consult poll taken in April found overwhelming support for leniency toward Dreamers, with 78 percent of registered voters saying they should be allowed to remain in the U.S. and 56 percent saying they should be allowed citizenship.
Even among Republicans, support for citizenship was the most popular option when asked what should happen to Dreamers.
Yet the program has had its hiccups.
In the early going, it wasn’t properly checking for gang ties. In one instance, it failed to flag a North Carolina teen who was approved for the program and would go on to be accused of killing a former “America’s Next Top Model” contestant. At least 20 others were also approved despite potential gang affiliations that should have made them ineligible.
DACA’s approval rate in the early going was a staggering 99.5 percent. It has since slipped to 92 percent, but analysts said that is still incredibly high. The program’s backers say it’s self-selecting and that those who would have trouble qualifying don’t bother to apply — particularly because it would be a waste of the $495 application and filing fee.
The latest statistics from U.S. Citizenship and Immigration Services cover only through March 31, so it’s not clear what effect Mr. Trump has had on new DACA applications. The first two months of his tenure, however, seemed to show no significant slowdown in approvals from the last months of Mr. Obama’s term.
The program accepted its first applications Aug. 15, 2012, and drew huge interest and long lines — so much so that it spawned backlogs in processing at USCIS.
Texas Attorney General Ken Paxton has led the fight to shut down DACA, saying Mr. Obama broke the law by acting unilaterally, outside of congressional approval.
He has said if Mr. Trump doesn’t agree to a phase-out — allowing those already approved to serve out the rest of their two-year permits but refusing to approve new applications — he will force the issue in court.
“If, by September 5, the DHS Secretary rescinds the 2012 DACA memorandum and agrees not to renew or issue new DACA or Expanded-DACA permits, then Plaintiffs will dismiss this lawsuit,” Mr. Paxton said in his latest court filing.
Homeland Security has not revealed what plans it has made for the potential end to DACA but said the department has been “well-tested” in reacting to court orders and would carry out whatever changes are ordered “in the least impactful manner possible for recipients.”
“The future of the DACA program continues to be under review with the administration,” the department said. “The president has remarked on the need to handle DACA with compassion and with heart.”
Indeed, the president has described the decision on what to do about Dreamers as among the toughest he faces.
His administration had been working on an executive order during the early days of the presidency to cancel the program but never issued it. Instead, Mr. Trump has specifically protected DACA and taken serious heat from campaign supporters for doing so.
One pressure group, Americans for Legal Immigration Political Action Committee, revoked its campaign season endorsement of Mr. Trump for failing to cancel DACA.
“He lied about ending DACA Amnesty on his first day in office,” ALIPAC President William Gheen said last month.
• Stephen Dinan can be reached at sdinan@washingtontimes.com.
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