“Deferred action” is a policy choice that immigration authorities have applied to different groups for more than three decades. Once it is established, those covered by it can come out of the shadows and sign up with DHS; they would be treated like other noncitizens who have been granted “deferred action.” Government regulations allow them to obtain Social Security numbers and work authorization. Deferred-action status is and always was temporary—it needs renewal every two years; the department made clear at the outset that no “Dreamer” had a right to continue the “deferred action” status after two years. Importantly, the program does not provide a “path to citizenship,” which would require an act of Congress.
Napolitano’s memo set off furious controversy. Though “deferred action” was an established mechanism, it had never been applied to such a large class of undocumented people. Supporters said that the executive branch was simply doing what it had long done—setting priorities for enforcement—in ways that the INA specifically permitted. Critics saw an unlawful end run around Congress, which had failed to enact the proposed “DREAM Act” to protect “Dreamers.”
Then, on November 20, 2014, the Obama administration announced another new program, called “Deferred Action for Parents of Americans,” or DAPA. “Deferred action” would now extend to many undocumented parents whose children had been born in the U.S. On February 16, 2015, a federal district court in Texas, at the request of a group of states, blocked DAPA before it went into effect.
Read more: What will immigration advocates give up for DACA?
The DAPA program headed to the Supreme Court, then one justice short. After hearing arguments, the justices tied, 4–4. The Fifth Circuit’s decision was affirmed without opinion. DAPA was dead.
But that case was only about DAPA; nothing had happened to DACA. That remained in effect and, indeed, attracted political support from across the spectrum.
Then, on September 5, 2017, Sessions issued a memo calling a halt to DACA. Business executives, Republican and Democratic lawmakers, and immigrant activists all decried the perverse cruelty of penalizing individuals who had never made a decision to break American law and had lived blameless lives since arriving here. Trump himself seemed to repudiate Sessions, tweeting a mere two days after the attorney general’s letter, “Does anybody really want to throw out good, educated and accomplished young people who have jobs, some serving in the military? Really!.....” Trump delayed the change for six months to allow Congress to legislate on the issue.
This, it seems, was a ploy. Trump tried to trade continuation of DACA for funding for his border wall. That didn’t happen, though, and the six-month grace period passed.
DACA was dead. Or was it? A large number of groups, including immigrants’-rights activists, universities with undocumented faculty and students, and state governments, rushed to court and obtained injunctions barring the administration from ending DACA—at least from ending it the way Sessions did it.