Manuel Balce Ceneta/AP Photo
DACA students gather in front of the Supreme Court on Thursday.
On Thursday, the Supreme Court ruled that the Trump administration had illegally rescinded an Obama-era program known as Deferred Action for Childhood Arrivals (DACA). The program, which the Trump administration ordered ended in 2017, protected 800,000 young “Dreamers,” who arrived in the United States as children, from being deported.
The ruling was made on narrow grounds, arguing that the government failed to give adequate justification for ending the federal program and thus violated the Administrative Procedure Act. In the 5-4 decision, Chief Justice John Roberts sided with the liberals on the Court and delivered the majority opinion.
As the opinion stated, “The dispute before the Court is not whether [the Department of Homeland Security] may rescind DACA. All parties agree that it may. The dispute is instead primarily about the procedure the agency followed in doing so.” The administration could again try to shut down the program if it offers a more detailed explanation for its actions and follows administrative procedure. However, given the program’s popularity and the timing of the upcoming election, the administration may be disinclined to do so.
“We will need to remain vigilant because the Court’s decision leaves a pathway for this administration to try again,” said Ur Jaddou, director of DHS Watch, a project of America’s Voice. “And, if there’s one thing this administration has shown us, they refuse to back down on DACA, even when it comes to protecting the lives of Americans during the pandemic.
The administration could again try to shut down the program if it offers a more detailed explanation for its actions and follows administrative procedure.
The precariousness of the DACA framework means that advocacy organizations are already turning toward lobbying for legislation that would offer a permanent solution for Dreamers. The American Friends Service Committee, which has advocated for Dreamers and provided know-your-rights information for DACA recipients, is already calling for congressional action. “We all deserve to know that we can feel secure in continuing to build our lives here,” said Itzel Hernandez in a statement. An immigrant rights organizer with AFSC in Red Bank, New Jersey, who is also a DACA recipient, Hernandez added, “Congress must stop funding agencies like ICE and CBP that harm our communities and pass legislation to provide a road map to citizenship for all 11 million undocumented people living and working in the United States.”
The situation surrounding DACA has also shifted since November’s oral arguments. With the arrival of the COVID-19 pandemic, lawyers involved in the DACA case submitted another brief to the Court—an unusual effort.
In an April 2 filing, lawyers told the Court that the pandemic had increased reliance on DACA recipients, as about 27,000 of them worked as frontline health care workers, and thousands more in other essential jobs. The submission was first entered as a letter that the Court formally rejected, but in an unusual move, the letter was converted into a motion and brief that the Court accepted in April.
When oral arguments were heard in November, the solicitor general testified that if DACA was terminated, recipients would not be targeted for deportation. But that stance changed. The government has “made clear that they plan to begin deporting DACA recipients if the termination of the program is upheld,” the brief states. Though the Court upheld DACA this time, the program still could eventually be terminated, putting Dreamers at risk.
Despite this additional submission to the Court, the government never responded—something that would normally happen when more information is submitted to the justices. “In the pre-Trump era, the lawyers on the case would feel duty-bound to report to the Court themselves [the government’s changed position on deportation] that they may not have presented the full information or that the information is different and they did not do that,” explained DHS Watch’s Jaddou.
The government’s oral arguments in November focused not just on the government’s violation of administrative procedure, but also on the program’s legality. In arguing the case, the solicitor general alleged that because the DAPA program was ended by a lower-court judge, the DACA program, which is similar, was also illegal and should be shut down.
But the liberal justices, in their questions, often focused on how the end of the DACA program would bring severe harm to recipients. As Justice Sonia Sotomayor put it, “[T]his is not about the law; this is about our choice to destroy lives?”
The liberal justices often focused on how the end of the DACA program would bring severe harm to recipients.
Jaddou explained that because DACA was a benefit, the government needed to provide stronger justification for eliminating it. “When you create a situation where people have a benefit and then it’s taken away, usually that requires [a] notice and comment [period],” she explained. “There are a lot of situations where this happens by policy creating something and over time it ends up creating a situation where a lot of people are relying on it and if you take it away you’ve taken something substantive.”
When the case was argued in November, outside the courtroom hundreds of protesters gathered to chant, “Home is here,” and oppose the end of the DACA program and the rollback of temporary protective status, typically granted to immigrants fleeing natural disaster or political strife in their home countries.
New polls show that Americans’ support for the DACA program and a path to citizenship for Dreamers is strong. Even a majority of Trump supporters want to protect Dreamers from deportation. A June 17 Pew Research poll shows that 74 percent of Americans support a law that would grant permanent legal status for DACA recipients.
Dreamers, as DACA recipients are known, are only eligible for the program if they arrived in the U.S. before age 16 and are no older than 30, if they have lived in the U.S. for at least five years, and if they are a high school graduate or a veteran and have committed no serious crimes. However, the program does not provide a path to citizenship and Dreamers must re-apply for the program every two years—a process which includes a fee of $495.
