DACA is Back!

A federal judge says the program must be reinstated.

Late last week, a federal judge said that the Trump administration’s attempts to eliminate the DACA program were unlawful and ordered the program to be restored “as it existed prior to the attempted rescissions.” Essentially, it must go back to the way it worked under Obama.

This is a huge win for DACA recipients whose ability to remain in the United States has been precarious under the Trump administration. More importantly, the judge ordered the Department of Homeland Security to begin accepting first-time DACA applications under the program. This means that people who fit the program’s original criteria can apply, but it does not mean that the program has been expanded or updated in any way.

Why has the DACA program persevered? After all, there were widespread questions about the legality of the program even when it was implemented. The answer is two-fold.

First, the program was crafted carefully and reluctantly. It gestated for years before being implemented (not to Obama’s credit, by the way). So its legality appears to have stood the test of time and legal challenges.

Second, the Trump administration has been so sloppy in its attempts to eliminate the program, that it undermined its own goals. This latest ruling, for instance, hinges in part on the fact that the person in charge of the Department of Homeland Security—an enormous agency—isn’t even serving in that position lawfully.

However, we need to keep in mind a few things. With the new Republican majority on the Supreme Court, any future litigation against Biden’s attempts to expand DACA or implement a version of DAPA (for parents who are undocumented) could undermine those future programs.

Also, the DACA program is starting to show its age. It was implemented eight years ago now, and although only a fraction of people eligible for the program actually applied (which means many are still eligible), I do wonder how many people will actually take the step of applying for the first time.

Finally, most legal scholars seem to agree that a smarter, better-coordinated administration could have completely eliminated the DACA program in the course of a single administration. So while DACA lives another day, this is a reminder that we need more lasting forms of relief for immigrants living in the United States.

If you want more legal information about the details of the judge’s order, University of Pennsylvania immigration professor Shoba Sivaprasad Wadhia wrote a clear explanation of what all this means in a short Medium post over the weekend and provided further resources on DACA. The judge’s order can be found here.

If you like getting news about the immigration system, sign up for this newsletter, share it with friends, and post it online. You can also follow me on Twitter here.