Last Thursday, the U.S Supreme Court issued a 4-4 split non-decision in United States v. Texas. This was the case that questioned whether or not the President had the authority to issue the programs we came to know as DAPA and Expanded DACA. There’s a lot of information out there about what this means, so I’d like to break it down into a few key points.
First of all, this does nothing to touch the 2012 DACA program that is currently in place. If you currently have DACA, it won’t be taken away and it can still be renewed. It also does nothing to touch individual deferred action that may be granted on a case-by-case program at the local USCIS Field Offices.
Second, the people who would have been protected by DAPA and Expanded DACA are not going to be specifically targeted for removal from the United States. There is a list of enforcement priorities that the Department of Homeland Security must follow and that list includes individuals who entered the U.S. or have removal orders after January 1, 2014; people with certain criminal convictions or are national security risks; or who are habitual visa violators. Those with a long history in the United States, with strong ties to the country, and with no or minimal criminal history, should not be a priority at all – and these are exactly people who would have been protected by DAPA and Expanded DACA.
Third, we don’t know why the Supreme Court acted the way that they did. It could have been based on a technicality. It could have been based on the true authority of the Executive Branch in regards to set immigration policy – and where the line is because only Congress can set immigration law. With a 4-4 split, there is only one sentence saying that the decision of the lower court is affirmed and we’ll have no additional insight.
Fourth, the fight doesn’t end. Although this means that DAPA and Expanded DACA mostly likely won’t be implemented in the next six months, the legal battle wages on. Advocates will look at ways to argue on behalf of the 4 million people who were denied the ability to come out of the shadows because of this non-decision.
Finally, what this non-decision shows me is that we continue to need true comprehensive immigration reform. DACA, DAPA, and Expanded DACA were created only as temporary solutions. They didn’t allow for green cards, they didn’t create ‘lines’ for people to get into so they could apply for permanent residency. All they did was allow for recipients to live without the fear of removal and to them to receive work cards for a certain amount of time.
What these families need isn’t temporary. They need a way to apply for permanent residency so they can be together without fear now or in the future. Yes, these programs are a good start, but we need more and we need to fight for more. Imagine if there was a way to apply for a green card just because someone had been here a long time, paid taxes, had no or little criminal history, and extensive ties here.
So, yes, the non-decision was supremely disappointing. But, let’s not lose sight of the bigger picture. We have an incredibly broken immigration system that necessitated the creation of these programs. Two big issues jump out: When the penalty for leaving the U.S. is a permanent bar to returning – would you leave? If there is no ‘right’ way to immigrate, again – would you leave? Let’s get to the root of the problem and make it so our immigration system allows for reasonable adjudication times, favorable discretion, and fairness.