Supreme Court Ruling Could Clear a Path for Trump Administration To Strip Protections From Hundreds of Thousands of DACA Recipients

The U.S. Supreme Court building is seen on May 12, 2020, Washington, D.C.

Any day now, the U.S. Supreme Court will announce its long-awaited decision on Deferred Action for Childhood Arrivals (DACA), a policy offering work authorization and protection from deportation to hundreds of thousands of immigrants who came to the United States many years ago as children. If the court rules that the Trump administration’s termination of DACA was lawful, it will clear the path for the administration to end DACA and strip protections from these individuals after more than two years of legal challenges. Notwithstanding such a ruling, the administration will likely not have to throw DACA recipients out of the workforce and put them, their families, and communities in jeopardy. However, if the administration does choose to apply the decision in that way, it is hard to imagine a worse time to do so than during a global pandemic, when more than 200,000 DACA recipients are working on the frontlines of the response. Should the Supreme Court rule against DACA, the Trump administration can and should continue to accept and process renewals, giving DACA recipients piece of mind and giving Congress time to act.

This column looks at what might happen should the Trump administration go ahead with its plan to end DACA.

What would this mean for DACA recipients?

Over the course of eight years, more than 825,000 young people have been protected under DACA. Today, there are 643,560 individuals who currently hold DACA. The latest data on DACA recipients, which cover renewals through March 31, 2020, were filed as evidence in one of the cases before the Supreme Court—Regents of the University of California, et al. v. U.S. Department of Homeland Security, et al.—and are on file with the author.

Without action from the Trump administration or Congress, DACA recipients could begin losing protections immediately. The most extreme result of a Supreme Court ruling would involve the court permitting or commanding DACA protections to be eliminated immediately. While such a ruling does not appear likely following oral arguments, it remains a possibility and would have the most devastating effect, forcing the nearly 650,000 DACA recipients to suddenly lose their permission to live and work lawfully in the United States. If, on the other hand, the court and the administration allow DACA recipients to remain protected for the duration of their current grants, the cumulative effect would still be significant—but it would take two years to play out.

According to the latest data filed, through the end of March, 23,020 DACA recipients with April, May, and June expirations had yet to renew their protections. In July, 15,260 DACA recipients will lose their protections from deportation and work authorization. Then, with two exceptions, every month through the end of March 2022, more than 20,000 individuals will lose their DACA, with half of these months seeing more than 30,000 DACA recipients lose their protections.

Figure 1

By the November 2020 election, nearly one-in-five DACA recipients—119,620—will have lost their protections.

What don’t we know?

Assuming the court does not itself invalidate DACA protections or bar the administration from continuing to accept and process renewals, there are still a number of questions regarding how the Trump administration and U.S. Citizenship and Immigration Services (USCIS) will react to a decision that permits them to end DACA:

  • Will USCIS adjudicate all renewal applications currently pending? As of March 31, 48,390 DACA recipients had pending renewal applications.
  • Will USCIS open a window for individuals with near-term expirations to apply to renew their DACA while Congress debates permanent protections, similar to what it did in September 2017?

Except in the most extreme scenario, the Trump administration will still have the power to issue automatic extensions for DACA recipients whose protections are set to expire over the course of the next year. Such an extension would cover 340,280 DACA recipients whose protections are set to expire by the end of May 2021 and who have yet to apply for renewal. Beyond that, the administration could—and should—allow DACA recipients with expiring work permits to renew and to process all pending applications in order to ensure that these individuals remain protected during these uncertain times.

What would this mean for the United States?

The end of DACA would have implications for more than the nearly 650,000 people directly protected. It would affect the 1.5 million family members with whom DACA recipients live—including their more than 250,000 U.S.-born children. In addition, it would jeopardize DACA recipients’ neighbors and their communities, where these individuals are teachers, health care providers, restaurant staff, and office colleagues. Moreover, the loss of DACA recipients’ annual fiscal and economic contributions—$8.7 billion in tax payments, $24 billion in spending power, and $2.9 billion in mortgage and rental payments—would put greater strain on a national economy that needs all the stimulus it can get.

Like all Americans, DACA recipients are experiencing tremendous stress and anxiety as a result of the COVID-19 pandemic. And just like many Americans, DACA recipients are on the frontlines. With some 29,000 in health care, 15,000 in education, and 142,000 in food-related services, DACA recipients are working alongside their neighbors to see the country through these challenging times.

Conclusion

Make no mistake: If the Supreme Court clears the way for the Trump administration to end DACA—a policy that is overwhelmingly supported by the American public—the decision ultimately rests in the president’s hands. Despite President Donald Trump’s promise to act with “great heart,” he and his administration have, to date, done everything in their power to end DACA and jeopardize the lives and futures of hundreds of thousands of DACA recipients. Even worse, U.S. Immigration and Customs Enforcement has made it clear that DACA recipients who lose their status are at risk: For months, the agency has been reopening previously closed deportation cases against DACA recipients, and acting Director Matthew Albence said that those who lose DACA protections will not be shielded from deportation. In the midst of a national emergency, it may be squarely back on the Trump administration to both act with compassion and put the national interest first. In the run-up to a decision, the administration must automatically extend current protections for those with DACA; and in case of a decision that allows the termination of DACA to proceed, it should continue to accept and process DACA renewal applications, ensuring that DACA recipients remain protected from arrest and deportation while Congress works toward an acceptable permanent solution.

Nicole Prchal Svajlenka is the associate director of research for Immigration Policy at the Center for American Progress.