The Volokh Conspiracy

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A Simple Way to Help Protect DACA Against Legal Challenges

President-elect Joe Biden has promised to fully reinstate DACA. But such a move will surely be challenged in court. Here's an easy way to reduce the risk that such challenges might succeed.


President-elect Joe Biden has promised to fully reinstate the DACA program as one of his first steps, once he formally becomes president on January 20. DACA is the Obama-era program suspending deportation of some 700,000 undocumented immigrants who came to the United States as children. It allows such migrants (often referred to as "Dreamers," after the Dream Act, which failed to pass Congress) to stay in the U.S. as long as they arrived in the  country when they were 15 years old or younger, were 30 or younger when the program began in 2012, have not been convicted of any crimes as of the time they apply for the program, and have either graduated from a U.S. high school, are currently enrolled in school, or have served in the armed forces. In addition to suspending deportation, the program also allows DACA recipients to obtain authorization for work in the US and accrue "lawful presence."

Last year, a closely divided Supreme Court invalidated a Trump administration effort to terminate DACA. But it did so on narrow administrative-law grounds that left open the possibility that Trump—or a future president—could easily terminate DACA in the future, so long as the administration did its administrative law homework somewhat better.  Significantly, the majority decision sidestepped the issue of whether DACA was legal in the first place. In the aftermath of the ruling, the Trump administration has continued to try to pare back DACA, and eventually get rid of it.

Biden's plan to fully reinstate DACA will almost certainly be challenged in court by red state governments and others, who will argue that it exceeds the legal scope of presidential power. The most vulnerable point of the program is the grant of "lawful presence" to recipients. For reasons I summarized here, this provision doesn't actually do very much. It is not necessary to protect Dreamers from deportation, and all it really does is enable them to accrue eligible time for the receipt of Social Security and Medicare benefits that, however, they are unlikely to ever actually collect unless their status is genuinely legalized at some point in the future, and they remain in the US until after retirement age. If the latter were to happen, the legislation granting legal status could easily also grant lawful presence for the entire period Dreamers spent in the United States, regardless of whether the DACA executive action previously did so.

But, despite its substantive insignificance, the grant of "lawful presence" is easily attacked as going beyond a mere exercise of prosecutorial discretion not to deport migrants, and instead extending an "affirmative benefit." This idea was emphasized by lower court decisions striking down the larger DAPA program in 2016, and by the conservative dissenters in last year's Supreme Court case.

The incoming Biden administration can easily eliminate this vulnerability simply by omitting "lawful presence" from its new order reinstating DACA. Alternatively, Biden could include a severability provision in the order, clearly indicating that the rest of the order will remain in force if the lawful presence element gets invalidated in court. Such "severability clauses" are given great deference by courts when they are included in congressional legislation. It is less clear that courts will respect a severability clause in an executive order. But there is at least a substantial likelihood they will.

The grant of work permits can also be attacked as an "affirmative benefit." In this case, however, the benefit in question does have congressional authorization, based on a 1986 law that specifically permits employment of aliens who are "authorized … to be employed … by the attorney general." There is no such unambiguous legislative authority for a grant of "lawful presence."

There are other arguments against the legality of DACA. I addressed them in some detail here and here. But they are much weaker than the attack on "lawful presence." Excising the latter could well make the difference between victory and defeat in court.

In the long run, the best way to institutionalize DACA would be for Congress to pass legislation to that effect. Even if Biden reinstates the policy through executive action, and it survives legal challenge, a future administration could potentially rescind it later, so long as it gets its administrative-law ducks in line. Not every GOP administration is likely to be as shambolic as Trump's often is.

In the meantime, however, a successful executive reinstatement of DACA can provide much-needed protection for hundreds of thousands of vulnerable immigrants who would otherwise be subject to the threat of deportation through no fault of their own. That's good for both them and the US economy, which benefits greatly from their many contributions. Dropping the questionable "lawful presence" element of DACA (or at least making it clearly severable) is a small price to pay for achieving that goal.