Dreaming of DACA

By Jeremiah Cha (UCSD ’19)

Introduction

The Deferred Action for Childhood Arrivals (DACA) program granted certain deportation protections as well as work eligibility to individuals who entered the United States as minors. Nearly 800,000 people were protected under the DACA program.[1] On September 5, 2017, the Trump administration made a significant and controversial decision to end that program. From Elizabeth Warren (D-MA) to Jim Imhofe (R-OK) in the Senate and Keith Ellison (D-MN) to Pete Olson (R-TX) in the House, nearly every member of the 115th Congress publicly expressed his or her opinion. These statements ranged from Steve King’s (R-IA) anti-immigration sentiments[2] to Bernie Sanders’ (I-VT) denouncement of Trump.[3] Regardless of the message, it is clear that the end of this Obama-era program represents one of the most pressing policy challenges and controversial issues created by the Trump administration.

More important than the political outpour, however, are the individuals affected by the DACA rescission who face uncertainty concerning their ability to remain in the United States. These individuals, known as DREAMers[4]urned to the executive for an alternative to the program. However, considering President Trump’s deference to Congress in his tweets,[5] it seems that the DACA alternative begins and ends in the legislative branch, at least for the next six months. Although alternative bills such as the BRIDGE Act (H.R. 496) and the RAC Act (H.R.1468) have been introduced and garnered around 30 cosponsors each, the DREAM Act (H.R. 3440), which has nearly 200 cosponsors,[6] seems to be both the most viable and likely solution to the uncertainty faced by the DREAMers. But the question still stands: what are the chances that a DACA replacement becomes law?

The viability of this bill to not only replace DACA, but also pass the tumultuous Congressional environment, lies with the Trump administration’s willingness to negotiate and compromise on DACA. However, Trump’s current direction on immigration policy and the DREAM Act’s unsuccessful history signal to the DREAMers that there will not be an adequate response, if any at all.

Current Environment and History

Since the early days of his campaign, Donald Trump has not shied away from the topic of immigration. Border walls, deportation, and illegality rhetoric have been hallmarks of a number of stump speeches by the incumbent president. Despite these sentiments, the DACA decision still came as a surprise; Trump had previously hammered home that DREAMers “shouldn’t be worried” multiple times in an interview with ABC News anchor David Muir at the beginning of this year.[7]

When announcing his decision to rescind DACA, Trump gave Congress six months to pass a replacement. Initially, there was some hope that there would be a rare display of bipartisanship on such a divisive issue. Democratic leaders Chuck Schumer and Nancy Pelosi announced in a joint press conference on September 14, 2017 that the two sides had come to a basic agreement to ensure the protection of DREAMers.[8] Although Trump appeared to backpedal on this press release, it seemed that some legislation would quickly pass. The discussion surrounding a DACA replacement then became one about a clean bill, without any anti-immigration concessions, rather than about whether a DACA replacement would pass.

On October 8, 2017, these hopes were dampened by a public release detailing the administration’s demands in return for a legislative form of DACA protections. Among those demands was border wall funding, deportation of unaccompanied alien children, asylum reform, and a number of interior immigration enforcement measures, such as sanctions on sanctuary cities and increases in detention authority. Considering that any bipartisan agreement would hinge on a deal with minimal concessions from the Democrats, these demands will complicate the negotiations between the Democrats and the GOP. Although this immigration agenda does not eliminate the possibility of the passage of DACA protections, it does impede the prospect of a clean bill, or at least one with as little dirt as possible.

Moreover, even a manipulation of parliamentary procedure or the inclusion of compromise amendments may not be enough to garner enough support to pass the DREAM Act. Considering this political environment, it is improbable that the DREAM Act or any DACA replacement will pass, at least without a litany of anti-immigration concessions.

In addition to a hostile political status quo, history demonstrates an unwillingness by Congress to pass deferred action in any manner. Since 2001, legislation to grant temporary deportation protections for individuals who entered the United States as minors had been continuously debated. Representative Luis Gutierrez (D-IL) introduced the Immigrant Children’s Educational Advancement and Dropout Prevention Act of 2001 in late April of that year.[9] Similar to the fate of many a bill, this legislation would meet its end in a litany of subcommittees, and it never came to a vote. However, the seeds had been planted for future legislation. Protection of the DREAMers was introduced into the public dialogue.

Nevertheless, the protection of DREAMers has consistently faced intense opposition from conservative proponents. Considering these legislative road bumps, Democratic legislators have tried to sneak in the DREAM Act in some form as bill riders or hidden provisions in larger scale bills. Senator Harry Reid, for example, tried on multiple occasions to attach the DREAM Act as an amendment to other popular bills, such as a Department of Defense authorization bill in 2007.[10] Even attachment onto appropriations bills was not enough to. The inability for movement of these bills is further exemplified by the breakdown of the Comprehensive Immigration Reform push in 2007. Although the inclusion of the entire text of the DREAM Act into CIR was not the main reason for the bill’s inability to break filibuster, the episode did represent another failure to pass protections for DREAMers. Along with independent bills introduced in 111th and 112th Congress (all by Dick Durbin (D-IL) coincidentally),[11] the DREAM Act’s future continued to match its moniker.

Until its repeal in 2017, the DACA program provided students and young adults with the ability to attend school, gain employment, and access social security numbersall without the fear of deportation.

Today, the DREAM Act has 200 cosponsors. At a quick glance, that seems like enough support to pass Congress. However, cursory interpretations of this number blanket over the controversial reality of immigration policy. 195 out of the 200 cosponsors are Democrats, who have consistently banded together to oppose Republican pieces of legislation. With only 5 official cosponsors from across the aisle, it is hard to say whether or not the DREAM Act can pass in any form. Even with 351 proposed amendments and 189 actions, the Comprehensive Immigration Reform Act of 2007 (S.1348) failed to garner enough votes for cloture.[12] Comprehensive immigration reform did represent a more divisive all-encompassing bill, but the complications that such a bill experienced are nevertheless a warning for all future immigration related legislation. The fate of the DREAM Act lies in the willingness of the 235 Republicans to compromise and negotiate.

This article has discussed mainly the House side of the DREAM Act, but the Senate side has just as much uncertainty. With only 9 cosponsors (albeit more Republicans than the House’s DREAM Act), the fate of S.1615 is unpredictable considering the unaccounted votes of the rest of the Senate. Although some of these members released public statements on DACA, DREAM Act support is often excluded in these press releases.

Conclusion

For the sake of the DREAMers, Congress needs to pass legislation to clarify the immigration status of nearly 800,000 people. However, being hopeful that the DREAM Act passes in its current form is naïve and ignores the partisanship that exists in the 115th Congress. With the anti-immigration agenda of the Trump administration, the history of conservative pushback to the DREAM Act, and the lack of Republican support, there is reason enough to believe that the DACA replacement will need to be changed to meet the demands of a Republican-controlled Congress.

The legacy of the Trump administration may not be contingent on his DACA decisions, but the next six months will surely be a litmus test. With the salience of immigration in the past year, this is simply not an issue that our policymakers can ignore. It is up to both the Trump administration and the GOP-controlled Congress to prove that the rescission of DACA was only a move to clarify boundaries between the three branches of government and not just a political move to phase out Obama-era programs. Without an adequate replacement for the DACA program, DREAMers will continue to live in the shadow of uncertainty cast by the Trump administration.

[1] Lee Cissna, DACA Performance Data FY 2017 Quarter 2, (Department of Homeland Security, United States Citizenship and Immigration Services, 31 March, 2017), online at: https://www.uscis.gov/sites/default/files/USCIS/Resources/Reports%20and%20Studies/Immigration%20Forms%20Data/All%20Form%20Types/DACA/daca_performancedata_fy2017_qtr2.pdf

[2] Lauren Fox, Rep. Steve King, DACA recipients should live in the shadows, (CNN, 6 September, 2017) online at: http://www.cnn.com/2017/09/06/politics/steve-king-daca-shadow-comments/index.html (stating that DACA recipients should “[l]ive in the shadows” )

[3] Bernie Sanders, Twitter Post, 5 September, 2017, 3:02 PM, online at: https://twitter.com/sensanders/status/905189327218638853?lang=en (stating “Trump’s decision on DACA is … the most cruel decision … made by a president of the U.S.”)

[4] This moniker references to the Development, Relief, and Education for Alien Minors (DREAM) Act, which has repeatedly been introduced to Congress since 2001; it has failed every attempt at passage.

[5] Donald Trump, Twitter Post, 5 September, 2017, 5:38 PM, online at: https://twitter.com/realdonaldtrump/status/905228667336499200?lang=en (stating that “Congress now has 6 months to legalize DACA”)

[6] The Development, Relief, and Education for Alien Minors Act is commonly referred to as the DREAM Act. The most recent Senate version also shares the same acronym. DREAM Act, H.R. 3340, 115th Cong. (2017), online at: https://www.congress.gov/bill/115th-congress/house-bill/3440?q=%7B%22search%22%3A%5B%22dream+act%22%5D%7D&r=2

[7] David Muir, TRANSCRIPT: ABC News anchor David Muir interviews President Trump, (ABC News, 25 January, 2017), online at: http://abcnews.go.com/Politics/transcript-abc-news-anchor-david-muir-interviews-president/story?id=45047602

[8] Steve Benen, Trump’s message on DACA, DREAMers loses its coherence, (MSNBC, 14 September, 2017), online at: http://www.msnbc.com/rachel-maddow-show/trumps-message-daca-dreamers-loses-its-coherence

[9] See Immigrant Children’s Educational Advancement and Dropout Prevention Act of 2001. H.R.1582 , 107th Cong. (2001), online at: https://www.congress.gov/bill/107th-congress/house-bill/1582/all-actions

[10] Michael A. Olivas, “The Political Economy of the Dream Act and the Legislative Process: A Case Study of Comprehensive Immigration Reform Comprehensive Immigration Reform Symposium: Problems, Possibilities and Pragmatic Solutions,” Wayne Law Review 55, no. 1 (2009): 1757. Online at: http://heinonline.org/HOL/Page?handle=hein.journals/waynlr55&div=55&g_sent=1&casa_token=&collection=journals

[11] See S.729 (111th Cong. (2009)), S.3827 (111th Cong. (2010)), and S.952 (112th Cong. (2011)), for versions of the DREAM Act entered into Congress by Dick Durbin

[12] Comprehensive Immigration Reform Act of 2007. S.1348, 110 Cong. (2007), online at: –https://www.congress.gov/bill/110th-congress/senate-bill/1348

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