The Deferred Action for Childhood Arrivals (DACA) policy continues to come under legal attack despite more than ten years of proven success – helping people who arrived in the US as children graduate from high school, go to college, and start their families and careers here. There are more than 500,000 DACA recipients (and many more who would be eligible but for court actions limiting new applications and strict date-of-entry requirements that have not been updated), most of whom are young adults today.
Unfortunately, they and many others find themselves continuing to live in legal limbo. There are a couple of key court hearings happening this month on two different DACA-related cases. But before going into the details on those cases, let’s revisit where we’ve been, because you may be thinking, wait a minute… didn’t the Supreme Court already rule on DACA a few years ago?
The short answer is yes and no. In 2020, the Supreme Court issued a ruling in the Department of Homeland Security v Regents of the University of California that had the effect of keeping DACA in place, though the ruling itself was limited to a procedural review. That is, the SCOTUS ruling held that the Trump Administration’s attempt to end DACA violated federal procedure requirements. SCOTUS has not ruled on the legality of the DACA policy itself.
What are the DACA-related cases about now?
The first case, Texas v United States, started back in 2021 when Texas, along with a handful of other states, sued the federal government arguing that the DACA policy is illegal and harmful to states. The Southern Texas District Court sided with the states and prohibited the federal government from processing new DACA applications while allowing current DACA recipients to retain their protections. The Biden Administration appealed the district court ruling, and in the meantime, formalized the DACA policy in regulation.
The Fifth Circuit Court of Appeals directed the district court to reconsider the case in light of the regulation. Unsurprisingly, the district court ruled that DACA is illegal for a second time, and the Biden Administration appealed again. After reviewing legal briefs filed by both sides earlier this year, the Fifth Circuit Court of Appeals will hear oral arguments in this case today. A ruling will likely follow within a couple of months. Depending on the outcome of this case – and the outcome of the Presidential election next month – either side could ask the Supreme Court to weigh in sometime next year.
The second DACA-related case, Kansas v United States, is focused on access to Affordable Care Act Marketplace coverage. Earlier this year, the Biden Administration finalized a regulation that will allow DACA grantees to access Marketplace coverage starting with open enrollment November 1, 2024. At the time of the final rule, CMS estimated that about 100,000 uninsured DACA grantees would gain health insurance coverage as a result. Kansas, along with 18 other states, filed suit, claiming that allowing DACA grantees to purchase Marketplace coverage violates the Administrative Procedures Act.
The plaintiffs are seeking a preliminary injunction, and the North Dakota District Court will hear oral arguments on the preliminary injunction motion on October 15, 2024. If granted, a preliminary injunction could prevent all DACA grantees from purchasing Marketplace coverage while the case continues to work its way through the courts. If past is prologue, that process could take years, leaving people uninsured in the meantime.
All of these actions – attacking the DACA policy itself and making it harder for DACA grantees to access health coverage – run counter to public opinion. In fact, most Americans support granting legal status to all immigrants, including those who arrived in the US as children. Only Congress can create a pathway to citizenship, but past attempts have failed. Will the 119th Congress find a way forward?