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The fate of hundreds of thousands of immigrants is caught in an endless court fight

The high stakes of the latest DACA decision, explained.

A woman in a yellow jacket and orange hat holds a sign painted with the Mexican flag and the words “No human is illegal, Defend DACA” above her head.
Pro-DACA protesters hold a march outside of the Capitol calling for a pathway to citizenship on November 17, 2022 in Washington, DC.
Nathan Posner/Anadolu Agency/Getty Images
Li Zhou is a politics reporter at Vox, where she covers Congress and elections. Previously, she was a tech policy reporter at Politico and an editorial fellow at the Atlantic.

This week, DACA — or the Deferred Action for Childhood Arrivals program — was dealt another blow in court after a federal judge deemed the program illegal, but stopped short of ending it for now. This decision means that DACA recipients who are currently in the program will continue to have some protections, but new applicants still won’t be able to apply.

The Obama-era program covers roughly 580,000 undocumented immigrants who came to the US as children, providing them both work authorization and a shield from deportation. DACA recipients, however, aren’t able to access key government programs and aren’t guaranteed a path to permanent legal status or citizenship. If the program were ultimately ruled illegal by the Supreme Court, it could mean that DACA recipients might lose their ability to work and face greater risks of deportation.

In a Wednesday decision, Texas District Court Judge Andrew Hanen concluded that President Barack Obama, who created the program using executive authority, overstepped his constitutional powers.

“The solution for these deficiencies lies with the legislature, not the executive or judicial branches,” Hanen wrote in his decision. “Congress, for any number of reasons, has decided not to pass DACA-like legislation ... The Executive Branch cannot usurp the power bestowed on Congress by the Constitution — even to fill a void.”

The current legal challenge of the program was levied by nine states including Texas, Alabama, and Arkansas, who argue that they’ve been harmed by undocumented people using government services like health care. Now, that argument, and the question of the program’s legality is likely to go up to the Supreme Court once again after the high court previously allowed DACA to stay in place.

What the decision means — and what comes next

Because Hanen continued an existing injunction on the program, current recipients won’t see their status or protections change at this time. While current DACA recipients can renew their status under the injunction, the program won’t be able to take on new applicants. Both of those issues aren’t likely to shift unless another court were to lift this injunction.

Hanen’s decision also sets the stage for an appeals process, one likely to end before the Supreme Court. The last time that DACA was in front of the Supreme Court was in 2020, when justices ruled 5-4 to preserve the program.

The new legal challenge once again puts hundreds of thousands of immigrants in limbo as they wait to see if the courts will keep their protections. The program has been critical because Congress has failed to act on immigration reform in recent years, as Republicans have demanded harsh border security measures in exchange for other policies like a pathway to citizenship, and as Democrats have rejected those policies.

In the past, Trump administration officials argued that the DACA program was an overreach by the executive branch and sought to end it on those grounds. Supreme Court Chief Justice John Roberts, in the majority opinion against the administration, said it hadn’t offered a clear justification to sunset the program, though the judges refrained from commenting on the program’s legality.

In 2020, Roberts detailed the impact the program has already had on tens of thousands of immigrants, and the contributions they’ve been able to make to the US, including starting families, buying homes, and paying $60 billion in taxes each year. He called the Trump administration’s attempt to undo DACA without providing a clear rationale “arbitrary and capricious.”

The makeup of the Supreme Court has changed slightly since the 2020 decision. Liberal justices then held four seats; the late liberal Justice Ruth Bader Ginsburg has been replaced with conservative Justice Amy Coney Barrett, meaning liberal justices now hold three seats and conservative justices hold six. (New liberal Justice Ketanji Brown Jackson replaced retiring liberal Justice Stephen Breyer.)

Barrett is generally seen as being sympathetic to conservative arguments against immigration, including those advanced by the Trump administration, though it’s impossible to say for sure how she’d rule.

It could be a while before any final ruling is made in the case, however: The Court might not hear and decide on the case until as late as 2025. Until then, hundreds of thousands of recipients in the program are forced to wait for the courts to weigh in on their livelihoods and status in the US.

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