As the U.S. Senate considers Brett Kavanaugh’s Supreme Court nomination, Americans will hear the term “legislating from the bench.” It refers to judges, or Supreme Court justices, ruling on matters that should be settled by legislators. Concerned with preserving the separation of powers, most senators will warn Kavanaugh not to engage in this practice.
Kavanaugh could respond by telling lawmakers to get to work.
In today’s highly partisan environment, hardly any legislation is moving forward. And when it doesn’t, judges are sometimes forced to rule on matters that should have been addressed by Congress.
Take the Deferred Action for Childhood Arrivals program, or DACA. Frustrated by the fact that Congress had spent years debating immigration reform – without actually passing a bill – President Barack Obama gave young undocumented immigrants who had been brought to the United States as children (the Dreamers) an opportunity. They could earn the chance to live in the United States legally for three years if they passed a background check and were employed, in school, or serving in the U.S. military.
Though beneficiaries could apply to renew their authorization as many times as they wanted, DACA wasn’t meant to be a permanent fix. It simply allowed these boys and girls to come out of the shadows and fully live in the country they’d always known until Congress passed immigration reform.
Congress didn’t do anything, and, in September 2017, the Trump administration gave Congress six months to pass a Dreamer bill before it shut down the program.
The administration’s March 5, 2018 deadline came and went, and lawmakers failed to send a bill to President Donald Trump’s desk.
Enter the courts.
Various parties filed several lawsuits to keep the administration from ending DACA and, over the past few months, federal judges in New York and California have ruled the U.S. Citizenship and Immigration Services (USCIS) must keep DACA open. These rulings only protected individuals who were in the program before March 2018. They don’t help the one million other Dreamers who also were brought here through no fault of their own and who’ve also been living in this country since they were small children.
Another case, between the NAACP and the Trump administration, also still hasn’t been settled. Briefs were due in late July and the U.S. District Court for the District of Columbia could rule at any time. This case might require the USCIS to accept new DACA applications from applicants who previously had not been in the program.
Then, on Aug. 8 a judge in Texas will hear another DACA lawsuit. The California and New York cases challenged the Trump administration’s ability to end DACA, but this case, brought by the attorneys general (AG) of a handful of states, asks whether DACA was legal in the first place.
If the judge rules in the AGs’ favor, DACA recipients will be eligible for deportation.
Eventually, this matter could make it all the way up to the Supreme Court where, if confirmed, it might be one of the first cases Brett Kavanaugh hears.
It’s unclear how Kavanaugh would rule on a DACA case—he served in the Bush administration, which tried unsuccessfully to help the Dreamers—but the Texas DACA challenge is led by the type of legal conservatives who generally support Kavanaugh’s nomination.
What is clear is that this matter never should make it to the Supreme Court. Only federal lawmakers can change immigration law. Only Congress can give the Dreamers the chance to earn a permanent place in their adopted American home.
On average, Dreamers have been in the United States since they were five years old. If they’re enrolled in DACA, they’re working or in school or the military. They’re paying taxes and have passed numerous security background checks. They contribute to our communities by filling jobs and creating them (six percent of DACA recipients own a business).
Congress shouldn’t leave the Dreamers fate to the courts. It’s time to get to work.
Steve Urquhart is a former Utah State Senator.
