Lessons About the Future of Immigration Law from the Rise and Fall of DACA

Abstract

Observers spanning the political spectrum have characterized the American immigration system as “broken.” Unfortunately, Congress for many years has been unable to forge agreement on the appropriate set of reforms, including a path for regularizing the legal status of the approximately eleven million undocumented immigrants living in the United States. Congress also has been unable to change the immigration laws in ways that measurably reduce the undocumented population, which has more than doubled over the last three decades. In no small part due to the prolonged stalemate in Congress combined with a sizable and stable undocumented population spread across the United States, immigration has become nothing less than a high-profile political battleground. Contemporary immigration touches on some of the most contentious divisions in modern American politics, including race, class, and national identity. Taking an enforcement-oriented approach to immigration unparalleled in modern American history, Donald Trump successfully ran for President by making immigration a central plank of his campaign. In so doing, Trump forcefully criticized the Obama administration’s immigration record. Consequently, to place President Trump’s immigration agenda into proper perspective, we must consider his target — the immigration record of President Barack Obama. With immigration reform efforts proving fruitless, President Obama sought through executive action to make improvements at the margins. Created by the Obama administration in 2012, Deferred Action for Childhood Arrivals (“DACA”) over a period of five years shielded from removal hundreds of thousands of young undocumented immigrants brought to the United States as children. Through an exercise of executive authority rather than a direct act of Congress, President Obama readily admitted that DACA necessarily was a limited, temporary, and incomplete form of relief for one component of the undocumented immigrant population. It was not intended to extend permanent legal status to undocumented immigrants or to address the many policy problems commonly associated with the contemporary immigration system. At the same time, DACA provided a valuable form of relief, including the authorization to work, to a sub-group of the total undocumented immigrant population. Claiming that DACA infringed on the power of Congress to designate the immigrants to be targeted for removal from the United States, the Trump administration provoked considerable controversy and debate in announcing the end of the program. DACA’s rescission posed critically important questions to the entire nation: what would become of the former DACA recipients? Was their removal a possibility? Might Congress provide them relief? In the political uproar following the attempted rescission, DACA became virtually synonymous with the political movement to reform the immigration laws and their enforcement. Part I of this essay initially considers President Obama’s immigration record, which saw a record number of removals, Congress’s failure to enact immigration reform, and the Executive Branch’s response through adoption of deferred action policies providing limited relief to a sub-set of the undocumented immigrant population. Exhibiting a devotion to aggressive immigration enforcement like no other president in modern American history, President Trump has focused on immigration enforcement above all other immigration goals and escalated enforcement efforts in new and different directions. With this background in mind, Part II sketches possible future directions for immigration reform in the wake of the rise and fall of DACA.