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In 2012, the U.S. Secretary of Homeland Security established Deferred Action for Childhood Arrivals (“DACA”) in an attempt to address the issue of deporting immigrants who were brought to the U.S. as children, never received legal status, and have lived continuously in the U.S. since 2007. Since its implementation, around 800,000 individuals have benefitted from the program’s provision of employment authorization and temporary relief from deportation. Despite the benefits the program has provided, it does not provide qualified recipients with permanent legal status or a path to citizenship. Furthermore, the program’s administrative implementation and lack of legislative endorsement leave the future of DACA vulnerable to a piecemeal reduction of the program’s benefits through litigation or a complete rescission of the program by the executive branch. This current state of Congressional ambivalence harms DACA recipients and DACA-eligible young people, while also financially harming American communities, businesses, and academic institutions.

 

DACA Litigation

On September 5, 2017, the Trump administration announced that it would rescind DACA, triggering a wave of lawsuits challenging the program’s validity. Parties opposing Trump’s decision to rescind DACA filed ten lawsuits, between January 2018 and June 2020, requesting preliminary injunctions that would require United States Citizenship and Immigration Services (“USCIS”) to continue accepting DACA renewals. Orders from the Ninth, Second, and D.C. circuit courts maintained the DACA program for renewal applications, but not for new applicants. In light of this litigation, and the potential for inconsistent legal opinions on the issue, the Department of Justice filed a brief requesting that the Supreme Court review the question of DACA’s validity before lower courts entered any conflicting judgments on the matter. On June 28, 2019, the Supreme Court granted certiorari (agreed to hear the case).

 

The Supreme Court Weighs In

Upon the release of the Court’s decision in June 2020, many media outlets and social media pages reported that the Supreme Court upheld DACA despite the executive’s attempts to rescind the program. Framing the Court’s opinion in this way implies that the Court overrode the executive’s decision based on the merits of the executive’s choice to eliminate the program. However, the majority opinion indicates that the Court arrived at its conclusion by finding that the executive did not properly eliminate the program. The Court also rejected the notion that the rescission was motivated by racial animus, foreclosing any Fifth Amendment Equal Protection claims. In short, the Court made it abundantly clear that the executive, and not the judiciary, has the authority to make such policy decisions, however unpopular they may be. This lack of commentary on the merits or morality of the executive’s policy choice leaves it up to the legislature to weigh in on the issue or allow the executive’s perception of DACA’s validity to remain unchallenged.

The question of what to do with children who arrive in the U.S. without legal authorization has lingered and remains unresolved since 2001, when Congress proposed, but failed to pass, the first DREAM Act legislation. Keeping this long legislative history in mind, an alternative interpretation of Justice Roberts’ words concerning the Court’s role in this issue emerges: if the executive branch passes a controversial policy in a legally correct way, the judicial branch cannot stand in the way, and Congress must act to change the outcomes of the policy at issue.

Here, the Court’s holding and reasoning rested primarily on a narrow administrative law issue: whether the executive acted in an “arbitrary and capricious” way when it rescinded DACA. This leaves DACA open to the possibility of future rescission, should an agency develop a policy that is not arbitrary or capricious.

Courts typically consider the following four factors when assessing whether an agency acted arbitrarily and capriciously: 1) whether the agency relied on factors Congress did not intend the agency to consider, 2) whether agency failed to consider an important aspect of the problem, 3) whether the agency’s explanation for the decision conflicts with the evidence used to support the decision, and 4) whether the decision is implausible. In this case, the Court focuses on a fifth factor: reliance interests, and the extent to which these interests “radiate outward” and affect the interests of parties not regulated by the scope of the policy in question. In adding this fifth factor of analysis, the Supreme Court is signaling that it has considered the high cost of rescinding DACA.

 

Why Congress Needs to Act

Following the Supreme Court’s decision to reinstate DACA, the Department of Homeland Security (“DHS”) released a memo indicating changes that limit the program’s benefits. These changes include the rejection of all initial DACA applications going forward, and a requirement that all renewal applicants must reapply every year, instead of every two years. These changes demonstrate the program’s vulnerability while highlighting the ways that DACA has become a political ping-pong, the terms of the program shifting with each change in executive administration. Without clear guidance from Congress, the cost to individuals, families, communities, and the economy continues to rise.

For DACA-eligible young adults who have reached an age where they would have qualified to apply for DACA, but are now unable to do so, the ability to plan for a future in the country where they have grown up has become impossible. For those who now must reapply every year, the ability to plan for a future beyond a year from where they sit today has become impractical.  These obstacles translate into financial losses over a lifetime, and recent studies demonstrate that immigrants who do not have a path to citizenship earn far less than they would if they had a path to citizenship. This income gap may exist because some jobs require citizenship or a commitment to remain in the role long-term. There is also the possibility that some individuals who do not have a path to citizenship may have no choice but to forgo pursuing advanced degrees or occupations that require long-term commitments.

If the research on reduced individual income earning potential is correct, DACA-eligible individuals, on average, do not have the opportunity to earn wages to their fullest potential without a path to citizenship. This highlights the shortcomings of the DACA program itself, while also demonstrating the ways that further limiting the program could cause more economic harm to these individuals and the American households they financially support.

The downstream effects of destabilizing DACA recipients includes destabilizing families and communities in both a social and economic sense. Because DACA recipients spent their childhood in the U.S., they have been educated domestically, have adapted culturally, and have established ties within American communities. The program’s requirements, that DACA-eligible individuals cannot have any criminal history and must have completed high school, support the notion that these individuals represent a cross-section of adults in the U.S. who have something to offer the communities they live in. Without congressional action, DHS will soon deport well-adapted and productive individuals who have grown up in the U.S., but do not have legal status because they never had the option of a path to citizenship.

The University of California estimates that DACA recipients are also the parents of roughly 200,000 U.S. citizens who would certainly experience emotional and financial harm if DHS deported their parents, or if their parents lost employment authorization. Outside the home, the cost of replacing DACA-eligible participants in the labor force is estimated to cost employers $6.3 billion. If nothing is done to provide DACA-eligible individuals with employment authorization going forward, over the next decade, the U.S. would lose a tax revenue of $92.9 billion. These costs do not consider the opportunity costs to communities where taxpayers, including undocumented taxpayers, have already paid for the public education of many DACA recipients and DACA-eligible individuals. Lastly, it is worth noting that these costs would disproportionately fall on communities with a large DACA-eligible population, as the DACA-eligible population happens to be highly concentrated in certain states with urban enclave communities.

To some, providing DACA-eligible individuals a path to citizenship may incentivize immigrant parents to bring their children to the U.S. without prior legal authorization, in the hopes that their child may one day achieve DACA eligibility as a path to citizenship. While this concern raises a valid possibility, until the U.S. finds a way to resolve all unauthorized immigration, childhood arrivals and the cost of not providing them with a path to citizenship remains a reality.

An act by Congress could settle, one way or the other, how the U.S. will treat children who have grown up in this country, but do not have legal status. In the meantime, the costs of failing to provide DACA-eligible individuals with a path to citizenship continue to increase. Both the moral and economic evidence weigh in favor of fully integrating these individuals who have grown up in, and continue to contribute to, American society.

 

About the Author: Gabriella Pico is a J.D. candidate for the class of 2022 at Cornell Law School. Prior to attending Cornell, she completed her B.A. in Public Policy and French at Hamilton College. Gabriella is a member of LALSA and serves as President of Cornell’s Cuban American Bar Association. Last Spring, she participated in Cornell’s 1L Immigration Law and Advocacy Clinic where she provided direct services to DACA recipients in the Cornell community. Some of her academic interests include immigration, education, and health policy in the U.S.

 

Suggested Citation: Gabriella Pico, The Cost of Congress Kicking the Can on DACA, Cornell J.L. & Pub. Pol’y: The Issue Spotter (Oct. 26, 2020), http://jlpp.org/blogzine/the-cost-of-congress-kicking-the-can-on-daca/.