Is this the end of DACA?

In 2012, the Deferred Action for Childhood Arrivals (DACA) program was established. This program provides work permits and protection from deportation to undocumented youth who came to the United States as children if they meet the DACA program requirements.

The Trump administration moved to phase out the DACA program in 2017, but the move was blocked by lower courts. Thus, the program did not end completely. Instead, current DACA recipients are able to renew their application, but no new applications to the program are accepted.

Appealed to the Supreme Court of the United States, a DACA ruling is expected in June. The justices will determine whether the current administration followed proper procedure in ending the program.

What effect will the DACA ruling have? Angela Banks, a Charles J. Merriam Distinguished Professor of Law at Arizona State University’s Sandra Day O’Connor College of Law, spoke to ASU Now about the possible outcomes.

Question: Could you give us some background as to why DACA is so controversial?

Answer: Interestingly, DACA is a program that has widespread public support. The reason a legal challenge was brought is because there were concerns by some that the process used to implement DACA, an executive order, was not the proper way to implement President Obama’s policy goals. DACA is a form of prosecutorial discretion, which has a long history in law enforcement. Within immigration law one form of prosecutorial discretion is deferred action, in which the government decides not to deport an otherwise deportable noncitizen. DACA outlined a specific set of guidelines that would be used to decide how the Department of Homeland Security would exercise prosecutorial discretion with deferred action.

Q: What could happen if the Supreme Court decides that the move to end DACA was lawful?

A: If the court upholds the ending of DACA, I see three potential outcomes. First, the government could immediately end DACA such that the deferred action and work permits for all individuals who currently have them would be invalid. Second, the government could end the deferred action and work permits on a specified date for all DACA recipients. Third, the government could honor the expiration dates for deferred action and work permits for current DACA recipients.

Q: If the DACA program ends, what could this mean for DACA students and employees?

A: Depending on how the program ends it would mean that at some point DACA recipients would lose their work permits, which would mean they no longer have the authorization to work in the United States. For college students, it could impact their access to in-state tuition. In the area of college tuition, we would be in a world very similar to that of pre-2012 when states had a variety of rules regarding eligibility for in-state tuition.

Q: What if the court decides the move to end DACA was unlawful? What are a few things we could see as a result?

A: If the court upholds the challenge in the DACA case we could see the administration undergo a new process to end DACA. The legal challenge claims that the process used to end DACA did not adhere to the Administrative Procedure Act. Therefore the administration could decide to utilize a new process and offer new reasons for ending the program. However, 2020 is an election year and DACA is a program that is widely supported. Therefore it is possible that the administration may decide to let the program remain until after the election.

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