32 United States The EconomistFebruary 24th 2018
1N
OEMI LUNA was a teenager when she
first realised she was not living legally
in the United States. “When you’re little
you go to school with other kids. You grow
up with them and believe you’re the same,
that you’re equal,” she muses. But when
her peers started getting driver’s licences
and travelling out of the country her par-
ents, who brought Ms Luna to America
from Mexico when she was two years old,
explained such things would not be possi-
ble for her. She was undocumented.
Deferred Action for Childhood Arrivals
(DACA), a policy President Barack Obama
implemented by executive action in 2012,
changed that. The programme allowed un-
documented immigrants brought to Amer-
ica as children to study and work in Ameri-
ca legally for renewable increments of two
years, so long as they had committed no
crimes and met certain educational re-
quirements. Now Ms Luna’s future, as well
as those of nearly 700,000 other so-called
Dreamers, is again uncertain.
In September 2017 President Donald
Trump announced he would phase out the
DACA programme, claiming that Mr
Obama had not possessed a mandate to
implement it with no input from Congress.
But Mr Trump did not end the policy out-
right. He gave DACArecipients whose sta-
tus would expire before March 5th one
month to renew it for another two years.
Those whose protected status lapsed after
that date would not enjoy the same privi-
lege. When their status lapsed, they would
be eligible for removal. Politicians took
note. Congress would need to reach a legis-
lative solution by March 5th or risk expos-
ing Dreamers to deportation.
Or so they thought. In January a district-
court judge in San Francisco ordered the
Trump administration to continue renew-
ingDACAapplications while the underly-
ing legality of ending the programme is
worked out. To the surprise of many, in-
stead of asking for a legal “stay” that would
have reversed the injunction, the federal
government complied. Yet the administra-
tion wants to bypass the federal appeals
court. It has asked the Supreme Court to re-
view the case directly instead of letting it
wind its way through the court system first,
as would normally be the case.
The Supreme Court has yet to indicate
whether it will take up the case but is ex-
pected to do so by February 23rd. On Feb-
ruary13th a New York court issued an order
similar to the San Francisco one, mandat-ing that the administration continue to re-
newDACA applications. This develop-
ment makes the Supreme Court’s
acceptance of the case much more likely,
says Leon Fresco, who previously worked
on immigration litigation at the Depart-
ment of Justice and now serves as an immi-
gration lawyer at Holland & Knight, a law
firm. If the Supreme Court does accept, the
soonest it would rule is early May. If it does
not, the case could take another year to
work its way through the legal system.
In the meantime, even though March
5th is no longer a hard deadline, some in
Congress are trying to find a legislative fix
which would render the court case imma-
terial. Versions of bills shielding Dreamers
from deportation have been introducedmore than 20 times since 2001 when the
first such proposal was floated, according
to LawLogix, a legal software group. De-
spite enjoying support from Republicans,
Democrats and the general public, the bills
have floundered. If the court’s ruling is un-
favourable to DACAand no legislative
agreement is reached, the law will return
to where it was before 2012, and people
who arrived in America as minors will
again be subject to deportation. That does
not mean they will all be deported. More
than 10m people are also eligible for depor-
tation and, short of war or pandemic, no-
body has yet devised a method for expel-
ling humans on that scale. But it would
reintroduce an arbitrary element to a sys-
tem that is already an act of self-harm. 7DeportationsDeal or No Deal
LOS ANGELES
What happens if Congress fails to make
a deal on DACA by March 5th?M
ARK JANUS could be making history
this year. On February 26th the social
worker from Illinois will be sitting with his
two lawyers in the hallowed setting of the
Supreme Court as the justiceshear one
hour of oral arguments in Janus v American
Federation ofState, County and Municipal
Employees, which asks whether public em-
ployees like himself, who choose not to
join their designated union, may still be
charged a compulsory “agency fee” to sup-
port collective bargaining. Mr Janus argues
that the fee violates his First Amendment
right to freedom of speech, because it
forces him to subsidise an organisation
whose bargaining position he rejects.
The court’s ruling in the case could de-
termine the future of the labour move-
ment. Though unionism has been in de-
cline for decades, the public sector has
remained a stronghold of organised la-
bour. Eighty-four percent of workers today
are employed in the private sector; only
around 6% are union members, compared
with about one-third in the 1960s. Yet of
the 16% of employeesin the public sector
more than one-third are still unionised. For
some professionals, such as teachers and
firefighters, the share is higher.
The relative strength of public-sector
unions and their inveterate support of
Democratic policymakers have made
them a prime target ofRepublican gover-
nors, especially in the Midwest. Scott
Walker, the governor of Wisconsin, risked
a recall election in 2012 (which he won)
when he brought in Act 10, a law which all
but eliminated collective-bargaining rights
for 175,000 public-sectoremployees. MrWalker went for public-sector unions be-
fore he took aim at those in the private sec-
tor. In 2015 Wisconsin adopted a “right-to-
work” (RTW) law, which stipulates that
private-sector workers cannot be forced to
join a union, and pay dues, as a condition
of employment. The same year, in next-
door Illinois, Governor Bruce Rauner, an-
other Republican, asked a federal court to
declare agency fees unconstitutional. Rob-
ert Gettleman, a judge in Chicago, dis-
missed Mr Rauner’s complaint. But he al-
lowed Mr Janus’s suit to proceed. It was
pushed by the National Right To Work Le-
gal Defence Foundation (NRTW), a non-
profit group, after it realised that Mr Rauner
was not going anywhere with his suit.Public-sector unionsJudgment day
CHICAGO
Unions are confronted with an existential threatLabour-saving devices