Laura Gómez, a professor at UCLA School of Law and faculty director of the school’s Critical Race Studies program, is a leading expert on race, law and society. We asked her to help illuminate last month’s Supreme Court ruling on Deferred Action for Childhood Arrivals, the Trump administration’s newly announced restrictions to the program, and what the future might hold for DACA’s beneficiaries.
Gómez, who also teaches in the departments of sociology and Chicana/o and Central American studies, is the author of “Manifest Destinies: The Making of the Mexican American Race,” now in its second edition. Her forthcoming book, due out in August, is titled “Inventing Latinos: A New Story of American Racism” and focuses on how Latinos’ dynamic racial identity impacts everything we think we know about race in America.
This is what she had to tell us.
What was the good news in the Supreme Court’s decision to uphold DACA?
The decision was an unmitigated victory for DACA recipients, including more than 120,000 in California alone, and all of those who support them.
It wasn’t so much that the Supreme Court majority upheld DACA as that it found that the Trump administration’s reasons for rescinding DACA were not legally sufficient. Specifically, the government did not provide a sufficiently searching justification for eliminating a program that over its eight years in existence has allowed some undocumented persons to come out of the shadows to attend college, begin careers and start families without fearing sudden deportation.
Did the ruling leave current DACA recipients vulnerable? Did the court give the administration an outline for how to potentially succeed in ending the program in the future?
Yes, in a way. Chief Justice John Roberts, who wrote the majority opinion, did not foreclose the possibility that President Trump could provide a better rationale for rescinding the program — one which could meet the Supreme Court’s threshold. In part, it is this possibility that led Justice Sonia Sotomayor to author a separate opinion advocating that the case go back to federal judges to decide the question of whether Trump’s decision was unconstitutionally motivated by racial animus against Latinos.
This week — just over a month since the ruling — the Trump administration placed new restrictions on DACA that will force beneficiaries to renew their status every year instead of every two years, and new applicants will not be accepted. What does this mean for Dreamers?
There will definitely be lawsuits from applicants who have applied since the Supreme Court decision, but it is not clear that these new applicants have a good legal argument — unlike those currently receiving the benefit.
Trump expected the Supreme Court to go his way, and he had announced he hoped Congress would enact legislation creating DACA and perhaps give him a lift before the election. In essence, he has now circumscribed DACA as much as possible without technically eliminating it. He can tell his base he rebuffed the federal courts while saying to more moderate voters that he complied with the Supreme Court. For Dreamers with DACA, the president has once again put them in limbo. What kinds of plans can be made knowing that your legal authorization is only valid for 12 months?
The situation reveals the ways in which Obama’s 2012 creation of DACA was a band-aid rather than a genuine solution. DACA was meant to be a temporary, partial solution until Congress enacted comprehensive immigration reform. The latter would have included a path to citizenship for millions of people, rather than providing work authorization for a select number. As DACA protesters themselves have said, they don’t want to be singled out for special treatment. They want their parents to have the same rights they do. Instead, Trump has immigrants fighting over crumbs.
What does this case tell us about executive orders from president to president?
In the dissent, Justice Clarence Thomas argued that because President Obama created DACA in 2012 via executive order, Trump had every right to eliminate it via the same tool. But five justices disagreed, emphasizing that once a program exists, there is a higher burden for ending it. In that case, the executive branch has a legal obligation to evaluate how it might harm those who have relied on benefits from it. So this standard will guide future presidents and, in a sense, constrain their ability to undo their predecessors’ choices.
What would be an ultimate “win” for the cause of those who arrived in the U.S. as underage children? Legislation like the DREAM Act preferable to any executive order, correct?
Exactly. An executive order does not have the force of law that congressional legislation has, so the best way to protect those immigrants brought here as children is for Congress to pass, and the president to sign, the DREAM Act.
Research by UCLA professors like those with Democracy Fund + UCLA Nationscape has shown widespread support across the country for creating a path to citizenship for Dreamers — including 79% of Democrats, 64% of Independents and 56% of Republicans. When the court makes decisions like this, is public sentiment typically a factor?
I doubt there’s a one-to-one correspondence between Supreme Court outcomes and public opinion, but I think there’s no doubt that, as society changes, the law changes too. After all, Supreme Court justices are people too.