If President Trump was aggravated by the legal challenges to his travel ban, wait until he takes on the young immigrants who call themselves Dreamers. He is likely to face a far bigger storm of opposition in the courts and also in the streets if he decides to shut down a program that has given protection from deportation to nearly 800,000 undocumented immigrants who came to this country as children.
In closed-door discussions in recent days, White House officials considered ways to curtail or halt the program, which is known by its initials as DACA, spurring hourly rumors that the president was about to announce its demise. But on Friday, House Speaker Paul Ryan called on the president to leave the program in place temporarily while Congress works on legislative solution, suggesting negotiations were still underway.
The travel ban affected a relatively small number of refugees and families who were already in the United States. The DACA program, which has been up and running for five years, has much deeper support in the country, polls show, and directly touches many constituencies. They include colleges where the immigrants are enrolled, churches where they worship, schools where they teach, companies that hired them and states that have offered them scholarships, drivers licenses and other benefits.
Trump will also confront the Dreamers themselves, who are the most sympathetic group of undocumented immigrants, since they mostly came with their parents when they were young. They have also become the most organized and combative among immigrant groups. With escalating protests in 2012 that embarrassed President Obama during his re-election campaign, the youths pushed him to use executive action to create the program. Now, their street actions have begun even before Trump’s decision – including a protest in Austin when the president went there to review the damage from Hurricane Harvey.
The White House has chosen to adopt an arbitrary deadline of Sept. 5 set by Texas and nine other states. They told Attorney General Jeff Sessions in June that if the administration did not move to end the program by that date, they would re-activate a lawsuit Texas brought against two other initiatives by Obama that built on the DACA program. A tie last year in the Supreme Court effectively killed those initiatives.
Trump seems conflicted. He promised during his campaign to cancel the program, but has let it continue until now. He has praised the young immigrants as “absolutely incredible kids,” and on Thursday Vice-President Mike Pence said the president was examining his options with a “big heart.” But Sessions, an adamant foe of DACA as a senator, has said he believes the program is unconstitutional and should not be defended against the Texas lawsuit.
The program, whose formal name is Deferred Action for Childhood Arrivals, does not give any lasting immigration status. It provides a two-year deportation deferral document, a social security number and a work permit. Up to now it could be renewed every two years.
The immigrants, given a little, have done a lot. Tens of thousands of them went to colleges or trade schools, and two-thirds of DACA holders in a 2016 survey said they had found better jobs at higher pay. Many rose to white-collar occupations as programmers, nurses, accountants, and, in some states, lawyers. They were able to get driver’s licenses, that essential rite of passage. They bought cars and homes, paying mortgages and taxes.
The program “provided the incentives and on-ramps back to school, into the workforce and to a life with a little more breathing room,” said Roberto Gonzales, an education professor at Harvard whose research focuses on immigrant youth. “They have had a taste of the American dream, with lives that reflect some upward mobility.”
If Trump wants to take that away, he has several options, all subject to challenge.
There is no dispute, even among legal scholars who support the program, that the president can cancel it summarily, by rescinding the simple policy memorandum — it wasn’t even an executive order — that Obama used to create it.
But by accepting the premise of the opponents, that DACA is a lawless overreach of presidential power, Trump would thrust himself into a constitutional contradiction, since he made even more sweeping use of the same executive powers on immigration when he ordered the travel bans.
Some administration officials argue that Trump should follow a suggestion made by Texas, halting any new DACA permits or renewals but allowing current ones to remain until they expire. Immigrant groups have estimated that about 30,000 permits would expire each month.
But that, too, would put Trump in a bind. If the administration nixed the program as outside the Constitution, it is unclear how it could justify allowing one part of it — the work permits — to continue. “They are trying to have it both ways,” said Lucas Guttentag, who was a top immigration lawyer in the Department of Homeland Security under Obama from 2014 to 2016.
At the same time, the work permits issued under the program fall under a separate, dense set of labor regulations. Revoking them outright would open the way to individual appeals from permit holders, creating a bureaucratic morass, said Stephen Legomsky, a former chief counsel for the federal agency that runs the DACA program.
Whichever approach Trump takes, states that have embraced the program would likely seek to defend it in court. In a letter in July, attorneys general from 19 states and the District of Columbia – twice as many as those supporting Ken Paxton, the attorney general of Texas—wrote that the cost of shuttering DACA “would be too high for America.” The states are weighing litigation based on losses they would incur in tax revenue and on investments they made in scholarships and other benefits for DACA holders.
Washington state, for example, passed a law extending college financial aid to DACA students. If the program were cancelled, the aid would stop immediately.
“I can’t tell you what heartache that would cause, to rip all that away from these kids we’ve made such a big investment in,” said Jay Inslee, the governor of Washington state, who is a Democrat. He was one of eight governors and dozens of state lawmakers who signed a statement this week saying terminating DACA would be “senselessly cruel.”
Businesses and institutions could argue they relied on an implicit assurance by the federal government that DACA permits would be stable. Universities admitted students and gave financial aid. Employers, including many of the nation’s largest corporations, hired and trained immigrants expecting they could be legally employed for two years if not more.
For now such groups are only pleading with the president to spare the program. This week the presidents of Yale and Harvard wrote direct appeals to Trump. Dozens of corporate CEO’s signed a letter of support.
Those pleas could eventually be channeled into litigation. “We now have five years of history to see how these young people have been contributing in very clear way,” said Senator Kamala Harris of California, home to at least 220,000 DACA holders, the largest concentration in the country. “We now have empirical evidence. So it is critical for the federal government to defend the program. We made a promise and we need to keep that promise,” said Harris, a former state attorney general, who is a Democrat.
If their DACA permits lapse, the immigrants would once again be undocumented and exposed to deportation. But that doesn’t mean they would be immediately removed. Immigrant youth groups said they will fight to ensure that the personal information they provided to the visa agency in the Department of Homeland Security, which runs the DACA program, does not get into the hands of the enforcement agency in the same department.
Officials have been assuring young immigrants that their information would be “protected from disclosure” to deportation agents “for the purposes of immigration enforcement proceedings.” But there is a caveat in the fine print that such assurances could be withdrawn at any time.
Yet as he was leaving office in December, the former Secretary of Homeland Security, Jeh Johnson, penned a letter defending the pledge of confidentiality, leaving a paper trail for immigrants to point to in a legal fight.
Some Trump administration officials say that ending DACA would spur Congress finally to pass more permanent legislation. The Dreamers take their name from the Dream Act, a bill to give them a legal pathway to citizenship that has been stalled on Capitol Hill since 2001. But with debt ceiling and tax reform battles looming, despite Speaker Ryan’s new proposal it isn’t clear other Republicans want to tackle a measure that is furiously opposed by Trump’s most loyal supporters.
If Trump does eliminate their protections, he will have to reckon with the Dreamers. They will paint his attack on DACA as consistent with his ambivalence in condemning the white supremacists in Charlottesville. Predominantly Latino, the Dreamers were enraged by Trump’s pardon of their bitter enemy, the former Maricopa County sheriff, Joe Arpaio. They have said they will openly resist efforts to deport them.
A DACA holder, Damaris Gonzalez, recently confronted Paxton, the Texas attorney general, as he was enjoying lunch in a Houston hotel, an encounter captured on video. Protesters said they would sit-in on Friday at Ryan’s offices in Racine, Wisconsin.
Cristina Jimenez, executive director of United We Dream, the largest immigrant youth organization, said the group’s focus was to save DACA. “They’re taking away a victory that was won by the community,” she said.