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Opinion How a little-known law might help protect the ‘dreamers’

Vice President Harris meets with Deferred Action for Childhood Arrivals recipients on July 22. (Ken Cedeno/Bloomberg)

Jody Freeman and Matthew Stephenson are professors at Harvard Law School.

Is there a way to help the "dreamers," undocumented immigrants who arrived in the United States as children, that won’t be blocked by a filibuster in the Senate? A little-known statute called the Congressional Review Act might provide the solution.

The uncertain status of the dreamers became even more uncertain last month, when a federal judge in Texas ruled that President Barack Obama exceeded his authority in creating the program in 2012. Under Deferred Action for Childhood Arrivals, dreamers are exempt from deportation if they meet certain eligibility criteria, allowing them to receive work authorization and other benefits. The judge’s legal reasoning is questionable. But given the current makeup of the Supreme Court, it might be upheld.

Congress could easily fix this problem — and it should have, years ago. Even without passing more ambitious legislation that would grant the dreamers permanent legal status, Congress could enact a narrower law formally approving DACA, ensuring that this program continues.

The main obstacle is the filibuster, which requires 60 votes to end legislative debate. Even if majorities in the House and Senate would vote to authorize DACA, getting 60 votes in the Senate is unlikely. Despite increasing calls to abolish the filibuster, key Democratic senators have made clear that they will not take that step.

And while some advocates of immigration reform argue that Senate Democrats have the authority to implement immigration reform through the mechanism of budget reconciliation, which requires a simple majority vote, that interpretation is subject to review by the Senate parliamentarian, who may not allow it.

In the case of the dreamers, however, the Congressional Review Act offers another way around the 60-vote hurdle. The law authorizes Congress to disapprove agency rules using a fast-track process — one that bars amendments, prevents delays in committee and, most significantly, requires only a majority vote. Once passed, so-called disapproval resolutions go to the president for signature just like any other law. Disapproved rules are effectively canceled — an agency may not implement or reissue a disapproved rule.

Until now, the Congressional Review Act has been used exclusively by incoming presidents to block regulations — for example, health, safety, or environmental rules — adopted by the prior administration. But the act’s potential is broader. The White House, Department of Homeland Security, and supportive majorities in the House and Senate could use the Congressional Review Act to formally authorize the DACA program, effectively overturning the federal court’s decision.

First, the Department of Homeland Security would issue a rule declaring that in light of the court’s ruling, the department will no longer implement the DACA program — exactly what the federal judge ordered. The department would then submit this rule to Congress for review. (Importantly, agency statements that announce general policies or legal interpretations count as “rules” that Congress can use the Congressional Review Act to disapprove.)

Next, Congress would deploy the Congressional Review Act’s fast-track procedures to pass a resolution disapproving the department’s rule. Once President Biden signs the resolution, it becomes the law of the land, with the same legal force as any other statute. And that means the DACA program may now continue. After all, the federal judge’s conclusion that DACA must be terminated was presented to Congress, in the form of an agency rule, and expressly disapproved.

This use of the Congressional Review Act, though admittedly non-traditional, is both logically coherent and entirely legal. Everybody agrees that the act gives Congress wide latitude to disapprove agency decisions, including decisions to end existing programs. Nothing in the Congressional Review Act, or any other law we are aware of, bars an agency from proposing a rule with the intent of having Congress reject it, especially if the agency is fully transparent about what it is doing. And because a congressional vote of disapproval counts as a formal change in the law, it overrides any court decision based on the prior law.

Crucially, using the Congressional Review Act in this way does not require a new exemption to the filibuster. The Congressional Review Act already creates such an exemption, one Congress has used 20 times, including three times during the Biden administration. Applying it to restore the DACA program would be just one more use — albeit an unusual one — of an established legal tool.

We freely acknowledge that using the Congressional Review Act this way would represent a dramatic departure from prevailing assumptions about how that law operates. But overcoming minority obstructionism calls for creative measures. Deploying the Congressional Review Act to get around the filibuster would be using one congressionally created tool to surmount the limitations imposed by another.

Fixing the broken U.S. immigration system will eventually require more comprehensive reform. But the Congressional Review Act gives Congress a way to help the dreamers right now.