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A closely divided Supreme Court seemed inclined to uphold President Donald Trump’s bid to terminate the Deferred Action for Childhood Arrivals (DACA) program during arguments Tuesday morning.
The high court’s conservative majority appeared to think the administration has provided an adequate basis for ending the policy, and in spaces even wondered if the courts have power to review the dispute.
Chief Justice John Roberts noted that the high court in 2016 affirmed a decision of the 5th U.S. Circuit Court of Appeals that blocked an Obama-era amnesty program called Deferred Action for Parents of Americans (DAPA). The 5th Circuit’s ruling and the Supreme Court’s subsequent affirmance provide a sufficient rationale for ending DACA, which is largely similar to DAPA, Roberts suggested.
“You’ve got a court of appeals decision affirmed by an equally-divided Supreme Court,” Roberts said, in reference to the earlier DAPA case. “Can’t he just say that’s the basis on which I’m making this decision?”
Apart from concerns about DACA’s legality, Justice Brett Kavanaugh said the Department of Homeland Security (DHS) identified independent policy reasons for ending the program. He repeatedly challenged lawyers representing left-leaning states and civil rights groups to describe why the government’s explanation for its decision fell short.
The Trump administration rescinds DACA
DACA does not confer lawful status on recipients, nor is it a defense against deportation. Instead, if delays removal for a renewable two-year period and allows beneficiaries to apply for work permits. Former President Barack Obama established the program in 2012. To qualify, recipients must have entered the country unlawfully before age 16, show five years of continuous residence in the U.S., graduate high school, serve in the Armed Forces, or enroll in school.
DHS oversees the DACA program. There are approximately 700,000 so-called “Dreamers” as of this writing. California is home to the largest number of DACA beneficiaries according to U.S. Citizen and Immigration Services (USCIS), with approximately 190,000 recipients. Texas follows at about 110,000.
Though initially established as a stopgap measure, the policy enjoys broad, bipartisan support. The president has repeatedly expressed reluctance to end DACA. Yet a decision from the high court authorizing its termination would give Trump significant leverage in negotiations with Congress over an immigration deal. Trump alluded to such an outcome in a September tweet.
DACA will be going before the Supreme Court. It is a document that even President Obama didn’t feel he had the legal right to sign – he signed it anyway! Rest assured that if the SC does what all say it must, based on the law, a bipartisan deal will be made to the benefit of all!
— Donald J. Trump (@realDonaldTrump) September 6, 2019
Acting Homeland Security Secretary Elaine Duke set a timeline for DACA’s termination in September 2017. In a memo explaining her decision, Duke said then-Attorney General Jeff Sessions told the DHS that the program is unlawful. She further noted that a coalition of states was threatening to sue the federal government over DACA in view of the 5th Circuit’s DAPA decision.
Duke’s memo prompted a flurry of litigation. Federal trial judges in California, New York, and Washington, D.C., blocked the order on a nationwide basis. Neither the plaintiffs nor the lower courts believe Trump lacks the power to terminate DACA. Instead, the challengers say Duke’s memo is “arbitrary and capricious” under the Administrative Procedure Act (APA) and must be set aside.
The APA requires that the government provide clear, reasoned explanations for new policy. By contrast, the plaintiffs argue Duke’s memo is a “superficial explanation” that “fails to explain the Acting Secretary’s reasoning.” The challengers say a second memo former Homeland Security Secretary Kirstjen Nielsen issued on DACA’s termination in June 2018 is similarly deficient.
“It is truly remarkable that a Cabinet-level officer would offer such a cursory explanation for a decision that affects hundreds of thousands of lives and reverses a longstanding and carefully-reasoned government position,” the plaintiffs told the high court in legal briefs. “The APA requires more.”
Before Supreme Court, disputes over reviewability, fate of “Dreamers”
The Trump administration argues its decision to cancel DACA is not subject to APA arbitrary and capricious review in court. That’s because the APA doesn’t apply to actions “committed to agency discretion by law.” Rescinding a non-enforcement policy like DACA is a “quintessential” example of agency discretion, the government said in its filings, much like a prosecutor’s decision to pursue or decline indictments. The government’s discretion is especially powerful in the immigration area, the administration adds.
Justice Samuel Alito seemed to agree with those propositions. He compared the DACA dispute to a case involving a hypothetical Justice Department decision not to prosecute cases of cocaine possession below certain amounts. Ted Olson, a lawyer challenging DACA’s termination, agreed Alito’s cocaine example could not be challenged in court.
“Well, what’s the difference?” Alito shot back. Justice Neil Gorsuch expressed similar doubts.
Even if its decision can be reviewed in court, the administration says the Duke and Nielsen memos give ample grounds for ending DACA that the courts must accept. The left-leaning justices were particularly dubious of that claim, saying those materials did not address real-world consequences in a meaningful way. Justice Sonia Sotomayor pointedly accused the government of blaming the law to dodge political heat.
“There’s a whole lot of reliance interests that weren’t looked at, including the current president telling DACA-eligible people that they were safe under him and that he would find a way to keep them here,” Sotomayor told Solicitor General Noel Francisco.
“Where is all of this really considered and weighed?” she added. “Where is the political decision made clearly, that this is not about the law, this is about our choice to destroy lives.”
“We own this,” Francisco said in reply.
Justice Stephen Breyer referenced numerous amicus (or “friend of the court”) briefs from businesses, labor unions, and religious organizations describing the benefits DACA recipients provide. Breyer said the Duke and Nielsen documents didn’t seem “to take into account that broad range of interests.”
“There are 66 healthcare organizations,” Breyer told Francisco. “There are three labor unions. There are 210 educational associations. There are six military organizations. There are three home builders, five states plus those involved, 108, I think, municipalities and cities, 129 religious organizations, and 145 businesses.”
Though Gorsuch was broadly sympathetic to the administration, at one point he telegraphed a possible compromise. He asked Francisco if the justices should send the case back to the lower courts and give the administration a chance to offer a more detailed rationale for its decision.
“Given the extent of the reliance interests and the size of the class, more needed to be said, more could be said, and it wouldn’t be a huge burden to require the government on remand to say more,” Gorsuch said, summarizing the plaintiffs’s views.
Kavanaugh countered that a federal trial court in Washington, D.C. did just that at an earlier phase of the litigation. Nielsen produced her June 2018 memo at the direction of U.S. District Judge John Bates, who found the Duke’s directive wanting. As such, Kavanaugh questioned the value of an additional remand.
“There’s already been, in effect, a remand,” Kavanaugh said.
The Mexican government and a coalition of big businesses are urging the justices to maintain DACA. A decision in Tuesday’s dispute, No. 18-587 Department of Homeland Security v. Regents of the University of California and the consolidated cases, is expected by June 2020.