Eric Columbus (@ericcolumbus) served as special counsel to the general counsel of the Department of Homeland Security from 2014 to 2017 and as senior counsel to the deputy attorney general in the Department of Justice from 2009 to 2014.



Anyone who knows anything about the government shutdown showdown — temporarily postponed until Feb. 8 after Senate Democrats cut a deal with Majority Leader Mitch McConnell — knows it has something to do with Deferred Action for Childhood Arrivals being set to end on March 5. Countless news reports and congressional statements have suggested that DACA is alive and well but faces an imminent and specific execution date.

Yet this is completely incorrect. DACA is the Schrödinger’s Cat of government programs, at once dead and alive. It died months before March 5, and it will probably live for months afterward — even if Congress does nothing to save it.


How did we get here? On September 5, President Donald Trump announced that he would be ending DACA, relying on advice from Attorney General Jeff Sessions that the program is “unlawful and unconstitutional and cannot be successfully defended in court.” Rather than pull the plug immediately, the president promised an “orderly transition and wind-down” to minimize disruption and give lawmakers a chance to strike a deal that would provide relief to DACA recipients. “Congress now has 6 months to legalize DACA,” he tweeted. “If they can’t, I will revisit the issue!” His official statement promised that DACA permits “will not begin to expire for another six months” — i.e., not before March 5.

This was false from the start. As the Department of Homeland Security announced the very same day, any DACA recipient whose two-year permit was set to expire by March 5 would have only 30 days to apply for a renewal. On October 5, the doors closed. Any DACA beneficiary who didn’t apply for a renewal by then, and whose permit has since expired, has lost DACA protections.

Astoundingly, DHS Secretary Kirstjen Nielsen didn’t seem to know this when she testified last Tuesday before the Senate Judiciary Committee. “No one will lose their status,” Nielsen claimed, “until March 5 or later.” But according to DHS statistics, 21,000 to 22,000 of those eligible failed to renew on time. The Center for American Progress estimates that nearly 17,000 of that set have lost their DACA benefits already due to the expiration of their permits.

So is DACA already dead? Not so fast. On January 9, a federal judge in San Francisco ruled that Trump’s DACA rescission was illegal because it rested on a “flawed legal premise that the agency lacked authority to implement DACA.” The court ordered DHS to resume processing all DACA renewal applications.

The court’s reasoning was questionable, and many legal commentators have criticized, among other things, the court’s conclusion that the Trump administration could not lawfully take a narrower view of its own executive powers than its predecessor. Most expected that the administration would immediately ask a higher court to put the ruling on hold — in legal terms, to seek a “stay” — pending an appeal.

Instead, on January 13, DHS announced that it would abide by the injunction and reopen the DACA renewal process. Anyone whose DACA permit has expired, or is about to expire, may reapply for a two-year extension.

It’s not clear why the administration agreed to reopen DACA for now. One possibility is that administration lawyers felt they couldn’t meet the demanding standard for a stay, which requires showing not only that the original court’s decision was wrong but that “irreparable harm” would occur if the decision is allowed to take immediate effect.

But a darker reason may best explain why they didn’t even try for a stay: The administration may have thought it politically advantageous to separate the DACA deadline from the government funding debate. If DACA is not, in fact, in immediate peril, then it’s easier to slam Democrats for demanding relief for unauthorized immigrants as part of a spending bill. Indeed, last week, House Majority Leader Kevin McCarthy said that “there is no deadline on DACA” and questioned why, given that the injunction remains in place, Democrats would “harm the military over something that’s not shut down.” The Center for Immigration Studies, a leading anti-immigration think tank, made a similar case. (A funding impasse wouldn’t affect DACA processing because the program is fee-funded: Renewal applications cost a whopping $495.)

This what’s-the-hurry argument cuts both ways. California Attorney General Xavier Becerra, whose state is a plaintiff in the DACA litigation, said that DACA’s temporary reprieve diminishes the need for Democrats to make other immigration-related concessions — possibly including funding for Trump’s wall along the Mexican border, limits on family-based migration, and speeding up the deportation process — in order to save it. Most DACA advocates, however, are loath to let up the pressure for a DACA fix, given the difficulty of finding another suitable must-pass legislative vehicle to force Republicans to the negotiating table.

The wheel of fortune spun yet again on January 18 when the Department of Justice took the extraordinary step of asking the Supreme Court to hear the case immediately, rather than first taking the case to the U.S. Court of Appeals for the 9th Circuit. “The district court’s unprecedented order,” DOJ argued, “requires the government to sanction indefinitely an ongoing violation of federal law being committed by nearly 700,000 aliens.” In the same brief, however, DOJ turned cartwheels to explain why it wasn’t seeking a stay, which would achieve the same goal. DOJ claimed that a stay would make it harder to “avoid the disruptive effects on all parties of abrupt shifts in the enforcement of the Nation’s immigration laws.” This makes little sense: DACA’s resurrection — whose duration no one can predict — is as abrupt a shift as it gets.

So what’s next for undead zombie DACA? It seems unlikely that the Supreme Court will take the case at this time, especially given that — by not seeking a stay — the administration is signaling that this is a one-alarm not a three-alarm fire. If the Supreme Court passes, the appeal would go to the 9th Circuit, which could decide it in a matter of months. But there’s no guarantee that the famously liberal 9th Circuit would overturn the injunction — in which case the administration would seek Supreme Court review yet again, and the decision might not come down until as late as June 2019. The Trump administration could seek a stay at any point, but would be unlikely to succeed after insisting to the Supreme Court that a stay would be counterproductive.

Either way, March 5 is highly unlikely to mean anything at all. Any end to the injunction—whether at the hands of the Supreme Court or the 9th Circuit—is almost certainly months away at the earliest. And if the injunction is lifted, the administration will need to decide whether to end DACA immediately or develop another gradual wind-down process like the one it announced last fall.

The bottom line is that no one knows anything about how long DACA will be around if Congress fails to strike a deal. This uncertainty does no favors for the 700,000 DACA beneficiaries who are shielded from deportation and able to work only by virtue of its existence. And one group remains shut out: those who would otherwise be eligible for DACA but never applied for it, whether due to unawareness or because they had yet to turn 15, the minimum age for eligibility. The government stopped accepting new DACA applications on September 5, and the injunction provided relief only for renewals.

There is, of course, one man who can unilaterally buy DACA more time. Remember when Trump said he would “revisit the issue” if Congress can’t make a deal? He could simply retract his September 5 statement and restore DACA indefinitely. To be sure, this could trigger a lawsuit from Republican state attorneys general whose threatened challenge to DACA apparently triggered Trump’s September 5 announcement. And it is more likely than not that such a lawsuit would eventually succeed, given the current composition of the Supreme Court—but it would take a while to get there.

A flip-flop on DACA would enrage the administration official who hates it the most: Jeff Sessions. Of course, Sessions may also be the administration official whom Trump hates the most. Would Trump save DACA as part of a passive-aggressive bank shot to prompt Sessions to resign in protest? Trump could then install a replacement who wouldn’t be recused from the Russia investigation and could take steps to rein in Special Counsel Robert Mueller. This isn’t very likely. But this is the Trump administration we’re talking about—stranger things have happened.