DACA: State of Confusion?

Confused about where things stand with DACA?  You are not alone!  More than an estimated 800,000 Dreamers await a clear path on the issue of their long-term futures, but this politically and emotionally charged issue is far from resolution.  Let's recap on recent events and shine some light on what could develop on the DACA front later this year.

What Did Congress Do About the Expiration of DACA?

Frankly put, nothing.  When President Trump announced the end of DACA last year, he gave Congress until March 5th to come up with a legislative solution. That deadline has come and gone because court decisions tempered the urgency to come up with a legislative fix.  Essentially, the pressure was off of Congress to commit to a solution, and rather than make a tough political choice, Congress opted to delay by passing budget deals that avoided the issue.

There is little incentive to take on this controversial topic ahead of midterm elections in November--- Congress is not expected to offer a legislative solution anytime soon.  

How Are the Courts Involved?

Numerous developments in district and appellate courts have offered the most practical aid for Dreamers in recent months.  It is these court orders that are functioning as a lifeline for ongoing DACA renewals.

One very important development came from the U.S. District Court for the Northern District of California.  In January, that court issued a preliminary injunction requiring the federal government to maintain the program on a nationwide basis and allow individuals to submit applications to renew their enrollment in DACA. This injunction has essentially revived DACA. 

Because the government is currently prevented from terminating the program, anyone who had DACA status prior to September 5th may continue to renew it.  Under the terms of the injunction, no new cases will be accepted for individuals who had never originally applied.  It's no surprise that the government immediately sought to challenge this decision, but opted to bypass the Ninth Circuit altogether (likely expecting that it wouldn't succeed there).  The results of this "bypass" are described below (hint, the Supreme Court didn't agree).

In what has the potential to be an even greater victory, the U.S. District Court for the District of Columbia in late April held that DHS’s decision to rescind DACA was “arbitrary and capricious” and vacated the termination of the program. The court determined that DHS must accept and process new DACA applications, as well as renewal DACA applications.  Unfortunately, the court stayed (suspended) its order for 90 days to give the government a chance to respond.

The decision of this court, if implemented, would allow initial applications from individuals who have never applied for DACA previously but who are eligible to apply. The government now has until late July to explain its decision to rescind the program. But because the decision is on hold, there are no new changes to the program as of now.

What is the Supreme Court's Position on DACA?

That remains to be seen.  What we know so far is that the high court denied the government's petition for certiorari in February.  In plain speak, the justices simply opted to not take up the government's request.  Skipping the normal appeals process would have been a rare move, one that the Court did not willing to make in favor of the Trump administration.

The battle is far from over, though, and the case has returned to the lower courts.  Appeals will be heard first by the Ninth Circuit and oral arguments are already slated for May 15th.  It's possible that the Supreme Court will ultimately decide this issue, but that will be through the normal appellate process.

For now, the February ruling leaves in place the injunction instructing the government to keep accepting DACA renewal applications.  Suprise--- things are not yet settled!