DACA, Proposition 187, and the legacy of the Trump immigration enforcement revolution

By Kevin R. Johnson, Special to CalMatters | 

The Trump administration has implemented unprecedented immigration enforcement policies, prompting challenges from state governments, advocacy groups and the University of California. 

Today the U.S. Supreme Court will hear oral arguments in three cases in which the University of California and others are challenging the Trump administration’s termination of the Deferred Action for Childhood Arrivals policy. 

The case will determine whether hundreds of thousands of young undocumented immigrants can stay in the country. The policy and ones like it regarding immigration could shape national politics for years to come, as Proposition 187 has shaped California politics.

DACA was the brainchild of Janet Napolitano, then Obama’s Homeland Security secretary and now UC president. It has allowed 800,000 young undocumented immigrants who came here as children with their parents to remain in the United States with authorization to lawfully work. 

Using conventional prosecutorial discretion in deciding which undocumented immigrants to prioritize for deportation from the United States, the Obama administration through DACA decided not to target for removal law-abiding young people brought to the United States as children. 

In a detailed opinion, the Office of Legal Counsel in the Department of Justice had concluded that DACA was lawful, and no court ever found DACA to be unlawful.  

DACA recipients relied on its relief in making life decisions. They attended colleges and universities, started careers, and began families. Importantly, DACA recipients were able to live without constant fear of removal. 

As a presidential candidate, Donald Trump criticized DACA as unlawful and promised that it would be dismantled. In September 2017, then-Attorney General Jeff Sessions announced the end of DACA. The Trump administration offered virtually no analysis for its claim that DACA was unlawful.

The Supreme Court will address the question whether, because the Trump administration offered little to justify its conclusory claims that DACA violated the law, the decision to rescind DACA is “arbitrary and capricious” in violation of federal administrative law.  

The court’s decision will literally change, for better or worse, the lives of hundreds of thousands of young immigrants.

President Trump has adopted other tough immigration policies, including family separation, mass detention, building a wall along the U.S.-Mexico border, and a Muslim travel ban. His policies have fueled activism that appears to have staying power.

Ultimately, the Trump immigration revolution might result in the same reaction that occurred after California voters approved Proposition 187, an anti-immigrant initiative that just celebrated its 25th anniversary.

The initiative would have stripped undocumented immigrants of public benefits, kicked them out of public schools, and required police to participate in verifying immigration status of persons with whom they come into contact.  

A federal court stopped most of the initiative from going into effect. But Proposition 187 dramatically transformed the politics of the Golden State. 

Latinx immigrants became U.S. citizens, and voted against the Republican Party that vilified immigrants. As new Latinx citizens became new Democratic voters, the Legislature became solidly Democratic and increasingly racially diverse, and consistently passes laws that protect immigrants, including declaring California to be a “sanctuary” for immigrants.

Some political responses to the Trump immigration initiatives resemble those experienced in post-Proposition 187 California. Naturalization rates are going up among Latinx immigrants.  Naturalized citizens are voting. 

The outcome of the DACA case being argued on Tuesday, November 12 will determine the fate of hundreds of thousands of young people. But if DACA is ultimately eliminated, the long-term reaction to the Trump immigration approach could be far reaching.

Protestors have marched in support of DACA recipients. The University of California declared it would not provide names of DACA students to the government. The DACA showdown could be the next Proposition 187, this time on a national stage.

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Kevin R. Johnson is Dean of UC Davis School of Law, krjohnson@ucdavis.edu. He wrote this commentary for CalMatters, a public interest journalism venture committed to explaining how California's Capitol works and why it matters.