Editor’s note: Although the U.S. Supreme Court ruled in its favor, the Deferred Action for Childhood Arrivals program remains a stopgap measure at best, affording participants temporary protection from deportation and permission to legally work but no path to U.S. citizenship. Lauren R. Aronson, an associate clinical professor of law and the director of the Immigration Law Clinic at the University of Illinois at Urbana-Champaign College of Law, spoke with News Bureau business and law editor Phil Ciciora about what’s next for DACA participants and immigration reform.
How would you characterize the U.S. Supreme Court’s recent decision about the Deferred Action for Childhood Arrivals program – a repudiation of the Trump administration’s efforts to unwind the program or more of a procedural ruling?
It’s a combination of the two. There’s an element of repudiation in that the Trump administration didn’t get what it wanted. For pro-immigration advocates, it’s important to remember there’s still an uphill battle to fight.
For DACA participants, it’s certainly a positive development in that it’s better than the alternative. But it is in no way a complete, unalloyed victory for the program itself. Their lives don’t automatically improve, but they also don’t get worse.
A dimmer interpretation of the decision says that if the Trump administration had followed the Administrative Procedure Act in a manner that wasn’t “arbitrary and capricious,” as the majority opinion states, then the outcome would have been different. Also, the court never explicitly says the DACA program is legal, nor does it give any kind of assessment of the program’s merits or substance. In fact, it basically provides the Trump administration a step-by-step instruction manual on how to achieve its goal of dismantling the program, should it want to try again.
Because we have a presidential election in less than five months, circumstances are such that the administration might not have the time to act in accordance with the APA to destroy DACA. If this had happened two years ago, the Trump administration would follow the court’s instructions and plow forward with another attempt at rescission. And, of course, if President Trump is reelected, his administration will have plenty of time to implement changes that follow the court’s guideposts.
What can be inferred from Chief Justice John G. Roberts being the swing vote in the 5-4 decision and writing the majority opinion?
It signals that the Supreme Court is aware of public opinion on this particular immigration issue. Polling indicates that 74% of the population, including 54% of Republicans, are in favor of DACA-type immigration legislation. The Supreme Court is ostensibly politically unbiased, but the justices are human and are attuned to what’s going on outside of their chambers.
Overall, it’s not as shocking as Associate Justice Neil Gorsuch siding with the liberal wing of the court in protecting LGBTQ rights. I’m not sure many people saw that coming.
Where does the DACA program stand now? How do we move the 700,000 or so participants, who range in age from their mid-20s to late-30s, out of this administrative limbo?
The more than 700,000 participants currently enrolled in the program can continue to renew. In a sense, their lives aren’t any different than where they were before the decision came down. If you’re a DACA participant, you’re still in a two-year forbearance of removal with the possibility of applying for work authorization. I should note that most participants have applied and successfully acquired work authorization, so the vast majority are contributing to our economy, including about 27,000 DACA participants who are health care workers contributing to the fight against COVID-19.
The permanent fix is a comprehensive immigration bill that looks something like the former DREAM Act but, unlike DACA, provides a pathway to citizenship. The good news is that there’s overwhelming bipartisan public support for such a bill. Under the right circumstances, it’s something that could pass even with a Republican majority Senate, I would imagine.
Editor’s note: To contact Lauren R. Aronson, call 217-244-9494; email laronson@illinois.edu.
