PD Editorial: DACA is in peril; Congress must act

A federal judge in Texas last week ruled that DACA — the Deferred Action for Childhood Arrivals program — is illegal. There will be appeals. Before the case reaches the Supreme Court, Congress should render the case moot and make protections for undocumented immigrants brought into this country as children permanent.

President Barack Obama created the DACA program in 2012 to protect those young undocumented immigrants — popularly called “Dreamers” — from deportation. Dreamers who meet a few conditions — such as attending school or serving in the military, and no serious criminal convictions — can apply for and receive protected status, renewable every two years. More than 800,000 Dreamers have qualified so far. There are hundreds of thousands more who have not yet applied.

Most Dreamers arrived in the United States by no choice of their own. They were brought to this country as children. They shouldn’t be punished for that. Many of them remember no other home. They grew up here, went to school here and contribute to the economy and vitality of this nation.

Compassion does not always align with legality. The Texas court ordered the federal government to stop considering new DACA applicants. Current DACA recipients may continue on until appeals are exhausted.

The judge struck at what has always been the shaky foundation of DACA: It was created by executive order, not legislative authorization. The president normally doesn’t get to implement such far-reaching policies without congressional direction.

There’s also a pragmatic issue. What one president creates through rule-making or executive order, another president can dismantle.

President Donald Trump tried to do just that, rescinding DACA. The Supreme Court ultimately rejected his attempt on a technicality, though the majority decision did not address the legality of DACA itself.

The Biden administration has vowed to appeal last week’s order suspending DACA for new applicants. If the case reaches the Supreme Court, the program could face long odds this time.

In the Trump case, three of the nine Supreme Court justices called DACA an “unlawful program” and suggested that the majority’s decision to avoid ruling on the merits was “an effort to avoid a politically controversial but legally correct decision.” They warned that DACA would return to the court.

If two or more additional justices join those dissenters, DACA recipients could lose their legal status and become subject to deportation. Perhaps Congress would finally act then, but passing a new law after so much procrastination could take many months. In addition, laws passed during a crisis rarely are ideal. Better to do it now without the pressure.

President Joe Biden in a statement responding to last week’s decision noted the need for action. “Only Congress can ensure a permanent solution by granting a path to citizenship for Dreamers that will provide the certainty and stability that these young people need and deserve,” he said.

Comprehensive immigration reform remains preferable, but it also remains unattainable due to deep partisan divides on the issue. Carving out a form of DACA should be possible, though. The program has had bipartisan support over the years.

A DACA bill should include a path to citizenship, but if that is too far for today’s Republicans, then pass the narrowest version necessary to preserve a valuable, humane program.

Protect American residents whose undocumented status was not their choice but who have made the best of their opportunity here.

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