Nine Years of DACA Drama, No End in Sight

June 15, 2021 marks the nine-year anniversary of President Obama’s unveiling of his administrative amnesty, the Deferred Action for Childhood Arrivals (DACA) program. To celebrate the nine-year anniversary, the Senate Committee on the Judiciary held a hearing on H.R. 6, the “American Dream and Promise Act,” a FAIR-opposed bill that provides a path to citizenship for more than 3.4 million illegal aliens.

So, in the nine years since President Obama’s Rose Garden speech, what are some major immigration events that have led to this point?

2013 “Gang of Eight” Failure

President Obama issued the DACA memorandum as a way to supplement ongoing negotiations occurring in the Senate. After the issuance of DACA, a bipartisan group of eight Senators announced legislation that would have legalized over 12 million illegal aliens in exchange for changes to our legal immigration system, including border security enhancements.

That bill – the “Border Security, Economic Opportunity, and Immigration Modernization Act” – passed the Senate by a vote of 68-32. It then went to the House of Representatives, led by Speaker John Boehner and the GOP majority. After widespread pressure from groups including FAIR, the House refused to vote on the bill, preventing this massive amnesty from becoming law.

Obama’s Second Amnesty Attempt – DAPA

In 2014, following the failure of the Gang of Eight bill, President Obama decided that he would follow up on DACA with a new program, Deferred Action for Parents of Americans (DAPA) which granted similar quasi-legal status to illegal aliens who had lived in the United States since 2010 and who had U.S.-born children or children who had green cards. Courts immediately prevented DAPA from going into effect, and the Supreme Court maintained a lower court ruling in a 4-4 split decision in United States v. Texas that DAPA was unconstitutional. President Trump later officially rescinded the DAPA order when he became president.

President Trump Tries and Fails to Rescind DACA

On September 5, 2017 the Trump administration announced the scheduled end of the Deferred Action for Childhood Arrivals program. Immediately, open-border activists and lawmakers decried the decision and vowed to fight it in court. Eventually, the subsequent court case made its way to the Supreme Court. In Department of Homeland Security v. Regents of the University of California, the Supreme Court ruled in a 5-4 decision that the Trump administration violated the Administrative Procedures Act (APA) in its attempt to end DACA. Chief Justice John Roberts, writing for the majority, stated explicitly that: “The dispute before the Court is not whether DHS may rescind DACA. All parties agree that it may. The dispute is instead primarily about the procedure the agency followed in doing so.”

Biden Strengthens DACA on Day One

On President Biden’s first day in office, he signed an executive order instructing government officials to maintain and strengthen DACA. President Biden’s memorandum asked the Secretary of Homeland Security, in consultation with the Attorney General, to take all executive actions he deems appropriate to preserve and the fortify the unconstitutional amnesty.

DACA’s Constitutionality Still in Limbo

In a separate case, the State of Texas sued the Federal government over the actual constitutionality of the memorandum itself. That case – Texas v. Nielsen – remains undecided, although many court-watchers expect Judge Andrew Hanen to rule that DACA is unconstitutional.

Many Congressional Democrats and open-borders groups cite Judge Hanen’s potential ruling as a reason to pass H.R. 6, the American Dream and Promise Act.

H.R. 6 – the American Dream and Promise Act

House Democrats passed H.R. 6 on March 18, 2021 by a vote of 228-197. It now languishes in the Senate, where a vote reaching 60 votes is very unlikely. Looming over the DACA debate is the Biden administration’s complete abdication of border enforcement leading to 926,868 encounters at the Southwest border in just eight months of the 2021 fiscal year (FY), eclipsing the total for both FY 2018 and 2020, and within one month will eclipse FY 2019.

During the Senate’s first hearing on H.R. 6, Democrats and Republicans painted very different pictures of the current state of DACA and the border crisis. Democrats largely ignored the border crisis’ relationship to DACA, seeing them as very separate issues requiring separate and unrelated legislative action. Republicans, on the other hand, argued that DACA and the border surge are related. The GOP senators particularly highlighted President Biden’s campaign promise to amnesty every illegal alien in the United States, citing such rhetoric as a key pull factor attracting tens of thousands of illegal aliens to the Southwest border.

That said, the 9th anniversary hearing was entirely ceremonial. The bill did not receive a formal markup, where committee members suggest amendments to the bill and then vote to send it to the Senate floor for a final vote. Until that happens, this bill on its own appears to be going nowhere. Nor do Democrats have the votes to force through radical immigration changes using the budget reconciliation process, a strategy that some Senators previously suggested.

Indeed, nine years after the beginning of DACA, it appears that the program is largely stuck where it always has been – lingering on, legally questionable, and threatened by litigation.

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