The Deferred Action for Childhood Arrivals (DACA) program is again under threat from a politicized legal challenge from Republicans – as it has been for the past 10 years.
Republicans’ anti-immigrant judicial pipeline looks like it will deliver a severe blow any day now. A panel of conservative judges in the federal 5th circuit are poised to rule in a case brought by Republicans in Texas to declare the program illegal. But Republicans’ efforts to end the wildly popular and beneficial program will likely be another important example of their extremism heading into the midterm elections. In 2012, the creation of the program was an electoral boon for Democrats and eliminating the program or failing to enact a permanent legislative solution could have an impact on politics again.
President Obama faced strong headwinds and lagging enthusiasm from Latino voters heading into his 2012 reelection campaign, but after the DACA announcement, there was a consensus that the 2012 DACA announcement had a major impact on Democrats’ enthusiasm deficit among Latinos. Following Obama’s win, Ezra Klein reflected on a pre-election conversation he had with a senior member of President Obama’s political team who predicted that the announcement of DACA was the day they won the election. A claim Klein took seriously, writing: “Changing people’s lives is always more effective than another campaign ad.”
After the 2012 electoral loss, the mainstream wing of the Republican party sought to reassess its trajectory, arguing that it should leave its nativism in the past and work on bipartisan immigration reform and broaden its electoral coalition. As a result, immigration legislation in the Senate – which included protections for Dreamers – passed in the Senate with a strong 68-32 vote. The House GOP leadership refused to allow a vote.
Almost from the day President Obama unveiled the Deferred Action for Childhood Arrivals (DACA) program in June of 2012, a number of leading anti-immigrants Republicans have sought to dismantle the program and ramp up deportations of immigrants who are American in all but paperwork. The anti-immigrant zealots inside the Republican party, like Kris Kobach, now a candidate for Attorney General in Kansas, led the political effort dressed up as a legal challenge to DACA in 2012. Nativists were then on the then-margins of the GOP. Yet Senator Jeff Sessions (R-AL), Stephen Miller and Steve Bannon rallied a wing of the GOP to oppose any attempt to reform our outdated and broken immigration system. Kobach’s DACA lawsuit went nowhere, but those nativist extremists bullied the Republican controlled House into inaction and ascended as the GOP evolved into a strongly anti-immigration and anti-immigrant party under Donald Trump.
By 2017, despite losing the popular vote by the millions, Donald Trump and the nativist extremists were in charge. In September, then-Attorney General Jeff Sessions gleefully announced plans to terminate DACA propelled, in part, by the choreographed “threats” to sue to end the program from Texas Attorney General Ken Paxton.
Sessions’ action was cheered on by many GOP leaders, as the Washington Post noted:
Kelli Ward, who is running against Sen. Jeff Flake in Arizona, endorsed the president’s decision to end “Obama’s unconstitutional amnesty program.” Danny Tarkanian, who is running against Sen. Dean Heller in Nevada, called DACA “unconstitutional” and said it should “never have been implemented” in a tweet yesterday. Rep. Lou Barletta, seeking the GOP nomination to run against Pennsylvania Sen. Bob Casey (D), commended Trump for “putting America first” and called the announcement “a victory for the forgotten American worker.”
Note: none of those candidates won. Nevertheless, Sessions’ hasty attack on the program was thwarted in the courts, including the Supreme Court.
Undeterred, Republicans brought their DACA attacks to the anti-immigrant judicial pipeline. In February of 2018, Paxton, along with the six other Republican Attorneys General from Alabama, Arkansas, Louisiana, Nebraska, South Carolina, and West Virginia, filed a lawsuit seeking to end DACA. Using his usual tactic, Paxton filed the case in the court of a known anti-immigrant Judge: Andrew Hanen. And, Hanen, as is his practice, delivered.
Following up on the legal attack on DACA, Republicans believed that doubling down on their anti-immigrant attacks would help secure midterm victories. In a reference to the scale, the number of immigration-related TV ads — and the amount of money spent on them — increased fivefold from 2016 to 2018. Eighty percent of those TV ads were from Republicans that portrayed immigrants as criminals or threats to public safety and national security. However, Republican defeats in 2018 were historic.
The new Democratic House moved to pass a legislative solution while Republicans worked to block a permanent solution that would create a pathway to citizenship for DACA recipients. In March of 2019, the House also passed the Dream and Promise Act. All 41 of the House Democrats who flipped congressional seats in 2018 voted in favor of the Dream and Promise Act (H.R.6). The margin was 237-187. Seven Republicans voted yes while, again, all the NO votes were Republican. A Republican filibuster in the Senate and an intransigent Trump blocked the legislation from moving forward.
In 2020, Republicans largely avoided attacking Democrats over their votes on this popular legislation and where they did, they lost. Of the 41 frontline Democrats, 31 won reelection, and of the 10 losses, only two (IA-01 and NM-02) races saw anti-immigrant ads that were unrelated to any specific vote they took in Congress. Meanwhile, Republican David Valadao (CA-21) won back his seat employing ads that championed his support for Dreamers. Rep. Valadao ran an ad touting that he “stood up to his own party to reform immigration and protect Dreamers.” Then in September, Valadao ran a TV ad with a testimonial from a DACA recipient, calling him a “champion for Dreamers.” Only two Congressmen, Rep. Conner Lamb (PA-17) and Rep. Matthew Cartwright (PA-17) saw attack ads hitting them for their H.R. 6 vote, and both won reelection.
Facing a tougher than expected reelection in Texas, Senator John Cornyn feigned support for Dreamers and ran a Spanish-language ad claiming to support these young people. After winning the reelection, however, Cornyn returned to being a roadblock to progress.
On March 18, 2021, the House of Representatives passed the Dream and Promise Act of 2021 by a margin of 228-197 – only 9 Republicans voted for the legislation while all the NO votes were Republicans. And again, a Republican filibuster in the Senate has so-far forestalled a permanent solution.
With DACA under real threat of termination, who controls Congress will determine the fate of hundreds of thousands of DACA recipients and their families. Republicans have made crystal clear their hostility towards Dreamers. House GOP Minority Leader Kevin McCarthy, who has his eye on the Speaker’s gavel if Republicans take the House, has promised to block any attempt to create a permanent solution for DACA recipients.
But McCarthy’s path to a majority runs through dozens of battleground districts where Republicans’ anti-DACA extremism could backfire in House districts in California, Florida, and Texas, among others. In those districts where incumbents or candidates purport to support Dreamers, they are taking a rhetorical stance in opposition to their party. Those Republican candidates should have to answer for McCarthy’s declarations and GOP AGs like Paxton who have weaponized the courts to attack Dreamers.
Furthermore, this fall, Republicans in marquee races around the country have already begun attacks on Dreamers in the campaign trail. The Republican Party of Florida attacked Democratic nominee Charlie Crist for his vote on the Dream and Promise Act of 2021. Nevada GOP Senate candidate Adam Laxalt has campaigned by attacking Dreamers,
Immigration has declined in salience for most general election voters this cycle, but it remains a powerful point of distinction between the parties. While the most animated voters on immigration are the MAGA base voters, the vast majority of the general electorate rejects that extremism. Two-thirds of voters have shown durable support for a permanent pathway to citizenship solution for Dreamers. This support remains even higher with important segments of the Democratic coalition.
Kevin McCarthy and Mitch McConnell have said they are going to make anti-immigrant attacks a messaging priority this cycle. A commitment confirmed by America’s Voice extensive GOP ad tracking project. Democrats should not seed this debate to Republicans, instead they should lean in with values based solutions like delivering on promises to create a pathway to citizenship for DACA recipients as soon as possible.