‘Perchance to DREAM’

The Development, Relief and Education for Alien Minors Act, known as the DREAM Act, has been controversial since it was introduced in 2001. Also controversial has been the Deferred Action for Childhood Arrivals program, or DACA, which was created by executive order by President Obama in 2012. Both represented help for undocumented students who were brought to the United States as children. Michael A. Olivas, the William B. Bates Distinguished Chair in Law at the University of Houston, tells the story of both in Perchance to DREAM: A Legal and Political History of the DREAM Act and DACA (New York University Press).

While awaiting the Supreme Court's decision on DACA, he answered questions via email.

Q: You start your book with a chapter on college residency and race prior to 1996. Why?

A: Because there were so few undocumented students early on, the real issue was whether an undocumented college student in, say, Texas or California could meet academic standards (as most could), and then, were they eligible for resident tuition. In 1982, for example, a Texas resident paid $4 per semester hour, and nonresidents paid 10 times whatever the resident tuition was. Today, that seems great, but in the years I was studying, that was a lot of money, with no access to federal Title IV financial aid (Pells, loans, work-study, etc.).

As my narrative shows, there were a surprising number of court cases and behind-the-scenes negotiations, leading to a situation in California for a time that the undocumented could have resident tuition in the community colleges and the California State University system, but then could not qualify for University of California system resident tuition. As it happened, I had insider-baseball status, inasmuch as I had been hired at the University of Houston in 1982 by UH chancellor Barry Munitz, who then had landed as CSU system chancellor, so I worked with him and his staff, as well as I had with his predecessor, who had been provost at Ohio State, where I had done my graduate work and where I came to know her.

These were valiant efforts by high-ranking leaders, with no script and great political pressure. So the whole ball game was residency as a financial consideration. Remarkably, this continues to be the case today, even with DACA and undocumented students. I have had a hand in drafting nine state laws based on intention and duration, and these have been emulated by almost two dozen states. Almost all the major sender states have resident tuition, and I have every hope that Arizona -- an important outlier state -- will succumb to my charms or lawsuits one of these days. Once they realize that they need these students who are not going away, they almost always come around. New Jersey was sweet, because Governor Chris Christie was the person who signed such a law. There has never been a comprehensive listing or history of these legal actions, so it provides a service that will help others who want to learn this trail.

Q: Why did the original DREAM Act fail?

A: As I indicated, its provenance was very promising, with Senators [Edward M.] Kennedy and [Orrin] Hatch having sponsored the original, but there was still lower-level resistance, and it came within a hairsbreadth during the Bush administration, but he ended up opposing and then in one calamitous vote, Senator [John] McCain bailed to run for the GOP presidential nomination, Senator [Barbara] Boxer had to be away when fires struck her state and Senator Arlen Specter bailed because he said the DREAM Act would make comprehensive immigration reform impossible -- a classic case of the perfect being the enemy of the good. The votes were there, but the senators could not deliver their votes. It broke my heart. Today, the U.S. Senate and its GOP majority is not even defending Senate prerogatives and has been dormant under President Trump.

Q: Why do you think President Obama had the legal authority to create DACA?

A: There is no doubt that he had the authority. It was a classic case of prosecutorial discretion, which every president before and since has insisted upon and exercised. The incumbent every day decides to pursue one policy or another, including which crimes will be prosecuted and highlighted and which will not be pursued. It is inconceivable that the president would not have such decision-making discretion.

And it must be remembered that President Obama was so successful in removing and deporting the undocumented (averaging 400,000 per year) that his liberal critics mocked him as the “deporter in chief,” a cruel moniker I never employed; I knew he was doing so and being focused on enforcement in order to enable DREAMers and undocumented parents with citizen children to have a pathway to citizenship. This step was what doomed DACA, as DACA was enjoined early, and the battle was joined. There have been well over a dozen cases involving different features of DACA, and it has been upheld by virtually all, and even had even made it was to SCOTUS, only to fall on the 4-4 decision, due to Justice Scalia’s death and the vacancy that was stolen by Senator Mitch McConnell, who refused to act on President Obama’s nomination. A full SCOTUS at that time would likely have breathed life into the program for the long haul (which I define as the time until a DREAM Act or [comprehensive immigration reform] are enacted).

Instead, it was remanded to the lower courts in Texas, who had not held for the DREAMers. The real irony is that there has never in my lifetime been a president who so thoroughly believes in his own discretion, has ignored so many law and precedents, and who litigates for the sheer point of buying time and fragging the system as President Trump. The only thing he feels hemmed in on has been DACA, which he and his administration have simply declared to be illegal, and so dismantled it or tried to do so. It hangs on by a thread, with no new applications being accepted.

Q: President Trump has been all over the place on DACA, sometimes saying he sympathizes with the students, and other times making decisions that would hurt DACA and its students. What do you think President Trump really thinks?

A: I do not have any fresh sense of this, and this makes me just like anyone else. DACA is simply another domain where he has walked all about the issue, and has even made fewer nativist statements, but he could have preserved the program or said he wanted to continue it until Congress had presented him with a DREAM Act, but his doubletalk has allowed Senator McConnell to bottle up hearings, draft legislation or any genuine consideration of some acceptable resolution.

The House has produced a reasonable PROMISE bill, but it was DOA with the Senate, with no interest by President Trump. You have to remember that anti-immigrant policies were the cornerstone of his campaign, and he has attempted to throw so much sand into the gears that even legal immigration, international students and a variety of employment and family-based immigration programs -- all of them lawful and of long standing -- have been ignored, slowed to a crawl or virtually eliminated, with the Senate allowing this illegal and transgressive agenda to occur with no oversight or assumption of its duties.

It is hard to teach immigration today, as so many laws have been ignored and left to ruin. Asylum and refugee laws are being administered outside the U.S. -- who ever heard of such a thing? And while he is occasionally slapped on the hand -- as SCOTUS did when Census authorities lied and were called out on questions of race -- it is virtually impossible to move any form of immigration reform, even DACA, which has substantial public support, to the fore.

Only a change of administration will restore even the basics, such as a functioning immigration and naturalization regime. I suppose here, I am a bad hombre, but I have a pen and a law license. I serve on the Mexican American Legal Defense and Educational Fund board, and we have successfully gone to court over 10 times, just to have DACA’s employment authorization enforced, with rogue national employers who choose to ignore the work permits DACA has granted. I say, employment authorization is employment authorization is employment authorization. And we win, but it should not be so hard, and the hullaballoo over DACA has contributed to these enforcement problems. But almost 800,000 DACAmented students have successfully navigated this generous program, and while it has life, we must allow it to work. These students are teachers, doctors, lawyers and licensed professionals. And they are ours -- we have invested in them and they have kept their part of the bargain.

Q: What do you think the Supreme Court will do on the case?

A: There are really only two possible results, and neither of them is attractive. If SCOTUS allows them to roll over in bed and close a lawful program simply because they do not want to continue it, they can ignore the way in which it was undone, and the student benefits (lawful presence, protection from deportability, SSNs and employment authorization) will slowly expire as their two-year reauthorizations end, rolling out for several years. Or, more appropriately, the court could find that the Administrative Procedure Act regulation (notice and comment periods and more fulsome deliberations) were not properly followed, and set out the X, Y and Z that must be observed. Of course, the administration knows the law here, and is simply hoping the Supreme Court won’t notice or hold them to the rules. But even they could properly do X, Y and Z and end DACA. So, the remaining DACA members would month by month exhaust their eligibility, like the Civil War widows’ fund. Because they have no alternatives available to them, they would become deportable and unemployed -- during the worst economic period in our recent history. The sword of Damocles hangs over them in a precarious time. The only long-term answer is a DREAM Act or comprehensive immigration reform.

My books started out as a birth announcement -- despite my initial misgivings about privacy issues and the unknowns, it blossomed into a well-conceived program that was a clear success, one that helped the poor and powerless become independent and self-supporting. I am tortured that it now appears to be a thoroughly researched and narrated autopsy, where even a success would likely be elusive and short-lived. Almost no reasonable organization doesn’t support DACA and its members.

I have spent most of my long career in trying to understand, advocate for and improve the opportunity structures for these students. For almost 40 years, I have been the only law professor in the country to specialize in higher education law and immigration law, so this has been my field to labor in. This is as much my life as theirs, and it disappoints me that I leave this issue unresolved, but others with even more resolve and fresh ideas will surface and appeal to our nation’s better angels. I studied to be a Catholic priest for eight years of high school and college seminary, so I am always the most hopeful and optimistic person in the room, as I am here.