The DACA decision this week is a win for the rule of law, but a tenuous one. The Trump administration’s nefarious intent gummed up the works, earning it a rebuke from the Supreme Court that other administrations might not have received for similar actions. But ultimately the court refused to name that intent, and left the door open for the administration to end Deferred Action for Childhood Arrivals under a different rationale.
Let’s name the intent — it’s called racism. And this kind of tenuous space is exactly where racism festers, where it becomes woven into the structure of society, shielded by anodyne language and procedural morass.
The responsibility for challenging racism extends beyond the Supreme Court, beyond Congress and the other actors rightly called out by justices on both sides of the decision for failing to resolve a long-standing issue. But, it’s not enough to say that we need permanent status for the DREAMers, or even comprehensive immigration reform. Nor is it enough to tout the amazing stories of triumph over adversity the DREAMers have shown us — the doctors and lawyers, nurses and soldiers, who have turned a flicker of opportunity into a shining star.
The DREAMers are the first to ask: what about my mom? What about my dad? My sister? What about the uncounted hundreds of thousands of other childhood arrivals who have been deported from the only country they have every known? What about the children they have left behind?
The DREAMers have jolted an older, more staid immigrant rights community out of negotiating behind the scenes and distinguishing immigrants from those accused of crimes, or stale arguments about contributions to society. They’ve pushed us to think bigger, to think about mass deportation the way we think about mass incarceration, to set aside the labels and ask why it is that these policies have disproportionately affected the same kinds of communities.
We don’t respect the rights of a group of people because we find their stories compelling, or appreciate their contributions to GDP, or how many “essential workers” that have sent to the frontlines of the pandemic.
Indeed, the Court deserves credit in its DACA decision for underscoring that even in highly discretionary settings, where some of the actors do not enjoy the privileges of citizenship, rights still matter. They are the measure of a democracy.
The decision reaffirms a principle that Justice Neil Gorsuch hammered home in Sessions v. Dimaya (itself a stinging rebuke of arbitrary immigration laws). Once the government confers a benefit, even if the intent was not to confer a right, it becomes a right if and when the government decides to take it away. There has to be a legitimate reason, due process, and an opportunity for judicial review. Why Gorsuch didn’t follow his own reasoning in the DACA ruling is a mystery.
In evaluating a program like DACA, the court reminded us that we should never lose sight of the central premise at stake in that policy — in this case “forbearance” of deportation — and not hang the policy on a technicality. In this case, the government’s case hangs on the public benefits claim made by the 26 states that sued the Obama Administration, as validated by the 5th Circuit. To be clear, the case was complex and hinges on one’s interpretation of the Administrative Procedure Act. I don’t claim to know who got that part right, but it’s also not the point.
The initial challenge to the extension of DACA that produced the decision was made in bad faith. The states that sued cited “public benefits” that they would be forced to provide — basically the cost of providing driver’s licenses for those who couldn’t afford them. That’s it.
Texas and the other states weren’t worried about going bankrupt or being overwhelmed by new applications for driver’s licenses. Indeed, most of the economic analyses of DACA showed that they would reap the benefits of keeping the program going. The states were making a claim about who has a right to have rights, and who does not. They were making a statement about not welcoming immigrants, their children, and their communities.
Of course, there’s another bad faith operator here — the President of the United States. Justice Brett Kavanaugh claims that his colleagues in the majority fell victim to the political moment. For him the same broad executive authority that allowed President Obama to enact DACA should allow President Trump to rescind it. He finds the majority’s argument that the government can’t change its legal rationale in the middle of a dispute ticky tack at best, and paints the whole effort as a delaying action.
But when dealing with highly discretionary policies, the intent behind the policy and the integrity of the policymaker become more important than in a more constrained setting, and should be subject to greater scrutiny. Even with such scrutiny, Kavanaugh might have been right with respect to any previous president.
The fact remains we have never had a president who built much of his campaign and presidential persona around the demonization of particular immigrant groups. It’s not about policy or even politics by any reasonable definition. Building a great wall along the border with Mexico and lying about nearly every aspect of its cost, feasibility or progress, retweeting alt-right conspiracy theories about immigrants to millions of followers, declaring a national emergency in order to deploy troops and roll out razor wire on the border with one of our closest allies and trading partners during a time of peace, creating an office in the federal government to sensationalize crimes committed by immigrants, using the pandemic as an excuse to end most legal immigration permanently — these actions convey intent, loudly and clearly.
Trump is a different phenomenon and the courts have treated him differently. As Justice Sonia Sotomayor points out, the President’s statements, tweets, and rallying cries were fair game in rejecting the Muslim ban and almost all of his other attempts to alter immigration policy via executive order. The same standard should have applied to the DACA decision.
Unfortunately, the majority rejected the equal protection claim in this case. That is to say they rejected the idea that there was racist or discriminatory intent behind the attempt to end DACA. While the reprieve the court granted DACA recipients got the headlines, the failure to recognize the underlying racism may be its more important legacy. It’s a small blind spot, perhaps, in a larger failure to recognize the injustice wrought by our immigration system over the last 25 years, far beyond Trump. But the buck has to stop somewhere.
In places like Tijuana, where there’s a large concentration of former childhood arrivals who have been deported to Mexico, these other dreamers are celebrating the decision — it will help people from their families and communities, people they admire and love, people who are as American as they are. They’re also getting ready for a tough weekend, another Father’s Day separated from their families. Some will attempt anguished phone calls or chats with their kids. They’ll apologize for not being there, tell them how proud they are, try to explain the hurt, the absence. They’ll blame themselves. But the rest of us need to take some responsibility too.
Under the guise of a particular category of civil law, we have sanctioned different punishments for the same offense depending upon one’s status; a lower standard for search, arrest, and detention; lower thresholds for law enforcement officers to use deadly force; closed-door trials without counsel, juries, or even transcripts; substandard wages and working conditions; and the forcible breakup of millions of families. This is daily practice across the United States. Immigration is but a pretext. It provides the labels and distractions that prevent us from seeing one of the most important vectors of racial discrimination in our society.
The President plays on civil society’s discomfort, our unwillingness to confront our own complicity, to openly identify with non-citizens who lack the DREAMers’ sheen, to talk about racism. We need to listen to the DREAMers rather than putting them on a pedestal. They’re telling us to think bigger, to challenge divide and conquer with a new kind of unity. Forging this unity will require us to question our policymakers, our law enforcement officers, our neighbors, and ourselves in ways that are uncomfortable, even uncivil. That’s the difference between an American dream that’s a vision for a better future, and one that’s mere artifice.
We might start by listening to some of the deported dads having those tough conversations this weekend. They and their kids have a lot to teach us.
Everard Meade is a professor of practice at the University of San Diego’s Kroc School of Peace Studies, and serves on the advisory boards of the American Bar Association’s Immigration Justice Project and AmeriMex Dreams en Acción.
