The Supreme Court will decide the most important immigration case in many years when they hear arguments brought by lawyers representing participants in the Deferred Action for Childhood Arrivals program (DACA). Ended by the president in 2017 but kept alive by lower court rulings, the executive order gives the children of illegal immigrants the chance to stay in the U.S. and makes them eligible for a Green Card.
Lawyers for the plaintiffs say the president acted illegally in ending the program.
“The Executive can change course on enforcement policies” lawyer Theodore Olson argued in new legal briefs, “but not in arbitrary and unreasoned ways.”
That’s the essence of the argument. Trump could legally end the program but he violated procedures in doing so.
At issue in the case is not the legality of the program that protects thousands of undocumented immigrants who came to the US as children, but how the government chose to wind it down. Olson said the government failed to “consider the costs of its decisions, including loss of work authorization for 700,000 DACA recipients.”
Back in 2017, the Trump administration announced it was going to phase out DACA, which it said had been created “without proper statutory authority.”
The move was immediately challenged in court by the University of California, a handful of states and DACA recipients who argued that the phase-out violated the Administrative Procedure Act, a federal law that governs how agencies can establish regulations.
Courts agreed and issued nationwide injunctions that allowed renewals in the program to continue.
“We conclude,” wrote a panel of the 9th Circuit Court of Appeals, that the rescission of DACA “is arbitrary, capricious or otherwise not in accordance with law.”
Well, that’s a matter of opinion. The Trump administration claims the rule was illegal anyway and DHS had more than enough reason to end it.
“At best, DACA is legally questionable,” Solicitor General Noel Francisco told the justices in briefs last summer. “At worst, it is illegal.”
Francisco stressed that the executive branch was within its authority to phase out the program and that the lower courts “erred” in “second-guessing” the Department of Homeland Security’s “entirely rational judgment to stop facilitating ongoing violations of federal law on a massive scale.”
In the briefs, Francisco argued that the decision to terminate the program was reasonable because the Department of Homeland Security had “serious doubts” about its legality. He said the decision was “more than justified by DHS’s serious doubts about the lawfulness of the policy and the litigation risks in maintaining it.”
Barack Obama decided to legalize the presence of almost a million illegal aliens with the stroke of a pen. The argument used was that a president’s constitutional authority gives him the right to enforce — or not enforce — whatever laws he wishes, even a million cases. The Supreme Court was deadlocked 4-4 in the first DACA case in 2016, so the constitutional question was left hanging.
The Supreme Court could rule very narrowly by agreeing with the plaintiffs that proper administrative procedures weren’t followed. But this is an issue that has been festering for years, which makes it more likely the court will rule on the ultimate legality of Obama’s action.
A decision is likely to come before next summer.