COVID-19 and the Future of DACA

June 25, 2020 | by Beth Zilberman

In a long-awaited decision last week, the Supreme Court blocked the Department of Homeland Security’s 2017 ending of the DACA program. Though DACA remains for now, the Court’s ruling was based on how the agency ended the program, leaving the door wide open for future attempts to terminate the program. The administration has stated it will again seek to end DACA. To comply with the decision, the agency now must also consider the new challenges COVID-19 has raised.

The Court’s decision was based on procedural rules for how agencies change policies. The Department of Homeland Security is given a great deal of leeway in implementing the nation’s immigration laws, but it is not without limits. When federal agencies make significant policy changes, they must explain their reasoning for the change. If the prior policy created any “serious reliance interests,” meaning people or entities took action relying on the fact that the policy existed, the agency’s explanation must include how it considered those interests in deciding to reverse course. The provision of an explanation helps make sure the agencies are held accountable to the public.

Like the many math teachers (and many law professors) before him, Chief Justice Roberts essentially told the Department of Homeland Security to “show your work.” The Court found that the agency failed to give an explanation that showed consideration of the reliance interests in DACA. For eight years, DACA has provided roughly 700,000 individuals a temporary shield from deportation and eligibility for work authorization. The agency should have explained how its choice to end the program considered actions taken in reliance of the program, including those of the DACA recipients themselves, as well as their employers, schools, and families.

As the agency prepares anew to do away with DACA, this time showing its work, the explanation of their decisions will look different than it might have the first time around. When DACA was ended in 2017, no one could have imagined the world we are now facing after the emergence of COVID-19. Certain reliance interests have been heightened or created by the pandemic. In particular, the agency will have to address the increased interests of a health care sector which is now battling a global pandemic. There are roughly 27,000 health care workers who are DACA recipients. In addition to the health care worker’s personal reliance interests, the agency will have to consider the medical facilities and schools that have invested time and resources in training these young professionals. Even before COVID-19, the health care industry and schools explained their reliance on the DACA program to the Supreme Court, including the huge shortages in medical professionals and even mentioning the concerns if a pandemic occurred.

As was pointed out to the Court, DACA recipients who work in the health care industry are more likely to work in underserved areas—including Arkansas. In 2017, the Arkansas State Board of Nursing began denying licenses to DACA recipients. In response, citing shortages in nurses throughout the state, the Arkansas state legislature passed a law allowing DACA holders to sit for the licensing exam. The law passed with huge bipartisan support as well as that of Governor Asa Hutchinson.

Given the current monumental demands on the health care industry, the Department of Homeland Security must explain how it considered these reliance interests in its next attempt to end DACA. Without explaining these pandemic-related reliance interests, the rule will be invalid—and there is no partial credit.

Beth Zilberman is an assistant professor and director of the Immigration Clinic at the University of Arkansas School of Law.