By: Iris Lin

Edited By: Arianna Staton and Maayan Abouzaglo

Although immigration to the U.S. has always been a hotly contested policy area, recent debate has centered around “undocumented” immigrants. There are currently around 12 million undocumented immigrants living in the U.S.[1] Many of these undocumented immigrants are known as Dreamers, who are undocumented immigrants under the age of 18 who have lived and gone to school in the U.S., and qualify for the Development, Relief, and Education for Alien Minors (DREAM) Act. The DREAM Act should have provided a pathway to legal status for young immigrants [2]. However, since the act’s first introduction in 2001, there have been many variations of the bill, but none have passed. The bill came closest to fruition in 2010 when it passed the House of Representatives but fell five votes short of the 60 necessary in the Senate [2]. Nevertheless, after Congress failed to pass the DREAM Act, the Obama administration announced the Deferred Action for Childhood Arrivals (DACA) program that would allow Dreamers to apply for work permits, obtain a Social Security Number, and pay taxes. DACA has allowed for 800,000 young undocumented people to work legally without fear of deportation. However, DACA doesn’t provide permanent legal status and must be renewed every two years. Accordingly, Congress should pass the DREAM Act and grant permanent legal status to young undocumented immigrants in order to ensure protection for those who not only make sacrifices to enter the U.S., but who also provide for the U.S. Protecting undocumented immigrants would not only benefit immigrants, but also the country as a whole as undocumented immigrants tend to work in low-wage jobs that are vital to the nation’s economic success.

On September 5, 2017, Acting Secretary of Homeland Security Elaine Duke rescinded the 2012 DACA memorandum and announced a “wind down” of DACA [2]. Since the memorandum was issued, the Trump administration has not accepted any new applications of DACA. Anyone for whom DACA would have expired as of March 6, 2018 would no longer have employment authorization. Thankfully, this attempted rescission was challenged by U.S. district courts in California.

In Department of Homeland Security v. Regents of the University of California, 591 U. S. 3 (2020), the Regents of the University of California sued the Department of Homeland Security (DHS) in the Northern District of California [3]. The plaintiffs argued that the rescission of DACA violated the Administrative Procedure Act (APA) because the recission did not comply with the APA’s notice-and-comment requirements. The APA governs the process by which federal agencies develop and issue regulations. The notice-and-comment requirements include publishing notices of proposed and final rulemaking and providing opportunities for the public to comment on notices of proposed rulemaking [4]. The plaintiffs also argued that the rescission deprived DACA recipients of constitutionally protected liberty and property interests without due process of law and was motivated by discriminatory intentions which violate the Equal Protection Clause of the Fourteenth Amendment.

The government tried to dismiss the case for lack of jurisdiction, but the U.S. Court of Appeals for the Ninth Circuit found that receding DACA was not “committed to agency discretion by law” [4]. The Ninth Circuit also granted the plaintiffs a preliminary injunction that preserved DACA. They found that the plaintiffs were “likely to win on the merits of their arguments, they would suffer irreparable harm in the absence of preliminary relief, the balance of equities tips in the plaintiffs’ favor, and the injunction is in the public interest” [4].

Department of Homeland Security v. Regents of the University of California, 591 U. S. 3 (2020) went to the Supreme Court where the justices issued a 5-4 opinion that the Department of Homeland Security’s decision to recede DACA is reviewable and that the decision was sudden and in violation of the APA. Since DACA is not just a policy but a program for immigration relief, under the APA, its actions are subject to judicial review. Furthermore, under the APA an agency must provide “reasoned analysis” for its actions [4]. The court determined that the Department of Homeland Security failed to consider policy alternatives, and did not evaluate the consequences of eliminating the DACA Memorandum.

In the majority opinion, Chief Justice John Roberts wrote that there was not a plausible case that the rescission was discriminatory and violated the equal protection guarantee of the Fifth Amendment. However, Justice Sonia Sotomayor dissented in this part and argued that it was premature to dismiss the respondents’ equal protection claims and that the case should remain open to allow the respondents to develop those claims. Justice Clarence Thomas also issued an opinion, concurring in part and dissenting in part. Justice Thomas agreed with the rejection of the equal protection claim but argued that because the Obama administration’s implementation of DACA was unlawful, the DHS’s decision to rescind the program was reasonable [4]. Justice Brent Kavanaugh argued that the memorandum written by DHS Secretary Nielson offered enough of a justifiable reason to rescind DACA [4].

While the ruling of the Supreme Court on Department of Homeland Security v. Regents of the University of California, 591 U. S. 3 (2020) offers a positive outlook for undocumented immigrants, it also leaves room for the possibility of recision. The benefits of DACA remain in place, but the ruling does not completely maintain the status of DACA as the court only preserved DACA based on the DOH’s failure to comply with the proper administrative steps when rescinding DACA. It is possible that as a lame duck the Trump administration could still challenge DACA with the proper reasoning and administrative steps, and President Trump has said he will in order to keep undocumented immigrants out of the U.S. [5] The future still remains uncertain for DACA recipients, which is why the DREAM Act should be implemented as a law passed through Congress. Implementing the DREAM Act as law would provide security to thousands of undocumented workers.

In addition to individual security, granting undocumented immigrants citizenship would vastly improve our economy. Not only would legal immigrants be eligible to pay for taxes to support programs like Medicaid and Social Security, but they also account for approximately one-third of workers in certain industries [6]. Undocumented immigrants occupy a majority of low-skill labor as many natural-born citizens are not willing to take these jobs. Research finds that these immigrants would be incredibly difficult to replace. According to Harvard economist George Borjas, “immigration improves labor market efficiency,” [6] as efficiency gains due to immigration are “between $5 billion and $10 billion annually” [6]. The Center for American Progress found that if DACA is terminated, it would eliminate at least $433.4 billion from the GDP over the course of a decade [7]. Further, if the 2014 bill providing a pathway for undocumented immigrants to gain citizenship had passed, it would have helped “reduce the deficit by $197 billion, increased investment by 2%, and increased overall employment by 3.5% by the year 2023” [8]. To put it briefly, granting undocumented immigrants citizenship would outweigh the costs as these immigrants pay taxes, contribute to welfare programs, and work in lower-paying jobs, all of which help improve our economy.

Although the Supreme Court’s ruling in Department of Homeland Security v. Regents of the University of California, 591 U. S. 3 (2020) provided a small and perhaps temporary victory for DACA recipients, permanent legislation is necessary to protect undocumented immigrants. Current programs supporting undocumented immigrants are too often left at the discretion of the executive branch, forcing programs into constant uncertainty. Most young undocumented immigrants grow up in the U.S., go to school in the U.S., have friends and family in the US, and have even started their own businesses in the U.S. Undocumented immigrants deserve an efficient and guaranteed pathway to citizenship, and if Congress were to grant permanent citizenship through the DREAM Act, they would contribute to programs that help U.S. citizens and would bolster the economy even more than they already do now.

notes:

“How many undocumented immigrants are in the United States and who are they?” November 12, 2019. https://www.brookings.edu/policy2020/votervital/how-many-undocumented-immigrants-are-in-the-united-states-and-who-are-they/, accessed November 1, 2020.
“The Dream Act, DACA, and Other Policies Designed to Protect Dreamers.” American Immigration Council, August 27, 2020, https://www.americanimmigrationcouncil.org/research/dream-act-daca-and-other-policies-designed-protect-dreamers, accessed November 1, 2020.
"Department of Homeland Security v. Regents of the University of California." Oyez. Accessed November 1, 2020. https://www.oyez.org/cases/2019/18-587.
“Summary of the Administrative Procedure Act.” United States Environmental Agency. Accessed November 1, 2020. https://www.epa.gov/laws-regulations/summary-administrative-procedure-act#:~:text=The%20Administrative%20Procedure%20Act%20
“Congress should exercise its independence: Pass immigration reform and provide help for DREAMers.” Des Moines Register. July 2, 2020. https://www.desmoinesregister.com/story/opinion/editorials/2020/07/02/daca-dreamers-immigration-reform-congress-should-do-job-editorial/3278859001/, accessed November 1, 2020.
Arloc Sherman, Danilo Trisi, Chad Stone, Shelby Gonzales, and Sharon Parrott, “Immigrants Contribute Greatly to U.S. Economy, Despite Administration’s ‘Public Charge’ Rule Rationale.” Center on Budget and Policy Priorities. August 15, 2019, https://www.cbpp.org/research/poverty-and-inequality/immigrants-contribute-greatly-to-us-economy-despite-administrations, accessed November 1, 2020.
Philip E. Wolgin, “The High Cost of Ending Deferred Action for Childhood Arrivals,” Center for American Progress, November 18, 2016. https://www.americanprogress.org/issues/immigration/news/2016/11/18/292550/the-high-cost-of-ending-deferred-action-for-childhood-arrivals/, accessed November 1, 2020.
“The Economic Impact of S. 744, the Border Security, Economic Opportunity, and Immigration Modernization Act, Congressional Budget Office, June 2013, https://www.cbo.gov/sites/default/files/cbofiles/attachments/44346-Immigration.pdf, accessed November 1, 2020.

Bibliography:

Arloc Sherman, Danilo Trisi, Chad Stone, Shelby Gonzales, and Sharon Parrott, “Immigrants Contribute Greatly to U.S. Economy, Despite Administration’s ‘Public Charge’ Rule Rationale.” Center on Budget and Policy Priorities. August 15, 2019, https://www.cbpp.org/research/poverty-and-inequality/immigrants-contribute-greatly-to-us-economy-despite-administrations, accessed November 1, 2020.

"Department of Homeland Security v. Regents of the University of California." Oyez. Accessed November 1, 2020. https://www.oyez.org/cases/2019/18-587.

“Congress should exercise its independence: Pass immigration reform and provide help for DREAMers.” Des Moines Register. July 2, 2020. https://www.desmoinesregister.com/story/opinion/editorials/2020/07/02/daca-dreamers-immigration-reform-congress-should-do-job-editorial/3278859001/, accessed November 1, 2020.

“How many undocumented immigrants are in the United States and who are they?” November 12, 2019. https://www.brookings.edu/policy2020/votervital/how-many-undocumented-immigrants-are-in-the-united-states-and-who-are-they/, accessed November 1, 2020.

“Summary of the Administrative Procedure Act.” United States Environmental Agency. Accessed November 1, 2020. https://www.epa.gov/laws-regulations/summary-administrative-procedure-act#:~:text=The%20Administrative%20Procedure%20Act%20

Philip E. Wolgin, “The High Cost of Ending Deferred Action for Childhood Arrivals,” Center for American Progress, November 18, 2016. https://www.americanprogress.org/issues/immigration/news/2016/11/18/292550/the-high-cost-of-ending-deferred-action-for-childhood-arrivals/, accessed November 1, 2020.

“The Economic Impact of S. 744, the Border Security, Economic Opportunity, and Immigration Modernization Act, Congressional Budget Office, June 2013, https://www.cbo.gov/sites/default/files/cbofiles/attachments/44346-Immigration.pdf, accessed November 1, 2020.

“The Dream Act, DACA, and Other Policies Designed to Protect Dreamers.” American Immigration Council, August 27, 2020, https://www.americanimmigrationcouncil.org/research/dream-act-daca-and-other-policies-designed-protect-dreamers, accessed November 1, 2020.