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Former U.S. Solicitor General Ted Olson speaks outside the Supreme Court after oral arguments were heard in the case of President Trump’s decision to end the DACA program for young immigrants, November 12, 2019, in Washington.
The Supreme Court heard arguments today for a much-anticipated case on the Obama-era program known as Deferred Action for Childhood Arrivals, or DACA. The argument rests on whether the Trump administration’s abrupt decision in September 2017 to end the DACA program was lawful. But the Court’s conservatives not only seemed unmoved by whether the procedure to terminate DACA violated the law; they could end up determining DACA is an unlawful program entirely.
The case has consequential implications for the roughly 700,000 young people DACA protects from deportation. The Trump administration’s decision was explained in a memo from former Homeland Security Secretary Kirstjen Nielsen, but the respondents argued that this was not an adequate explanation for terminating the program.
During oral arguments, several of the justices wondered how the justification for terminating the program had any rationale beyond that the administration believed that DACA was unlawful in the first place. Justice Sonia Sotomayor questioned how the government weighed the consequences for ending the program—if at all. She noted Justice Stephen Breyer’s listing—in a previous question—of the hundreds of groups in all categories that submitted amicus briefs noting harm to their interests by rescinding the program. “Where is all of this really considered and weighed, and where is the political decision made that this is not about the law, this is about a decision to destroy lives?” Sotomayor asked.
Many of these young people have degrees from American colleges, others have families, and some have taken out mortgages. To be eligible for the program, Dreamers—as DACA recipients are known—must have arrived in the U.S. before age 16, be no older than 30, have lived in the U.S. for at least the previous five years, be a high school graduate or a veteran, and have committed no serious crimes. If approved, Dreamers re-apply every two years for continued protection. However, it does not provide a path to citizenship. Given that congressional action on comprehensive immigration reform is unlikely, the Court’s decision on whether to uphold the program is essential.
These requirements help identify Dreamers as a specific category. This is essential to the arguments of Ted Olson, veteran of numerous Supreme Court cases and lawyer for the pro-DACA respondents. He argued that the Department of Homeland Security has prosecutorial discretion to decide “enforcement priorities.” In other words, Olson made the point that while the agency can decide on whom and when to enforce the Immigration and Nationality Act, that decision is presumptively reviewable in specific cases. He called the government’s decision “unexplained, unsupported and erroneous.”
The Court’s conservative justices grilled Olson, however. Justices Neil Gorsuch and Samuel Alito went back and forth over what was the specific line of when an agency’s action can be reviewed by the courts and when it can’t. Gorsuch’s main question was, what is the limiting legal principle on reviewability? At one point, Alito asked Olson, “Are you sure you want to argue that” the administration should have just “said more” in their written memo on the rescission of DACA?
Chief Justice Roberts frequently followed up on his colleagues’ line of questioning in an attempt to identify exactly where is the line of what’s reviewable. Despite the fact that Olson argued that DACA only “triggers” the benefits of employment and work authorization, and does not explicitly grant those benefits, Roberts disagreed. DACA is all about those benefits, he said.
The conservative justices appeared unconvinced by Olson’s and San Francisco Solicitor General Michael Mongan’s attempts to draw the line of when an agency’s decision is reviewable. Even several liberal justices followed a similar line of questioning.
The choice of Olson as a litigant is notable, given his conservative leanings and his extensive experience arguing before the Court. Indeed, Olson is a founding member of the Federalist Society, an organization that grooms conservative judges for the bench.
Solicitor General Noel Francisco, arguing for the government, asserted that allowing DACA to remain in effect would be to decide not to enforce the law under the INA. While agencies do have discretion when it comes to enforcement priorities, he argued that DACA actually asked the agency to break the law and by doing so created a “shadow INA.”
Francisco’s arguments focused on the belief that the decision to end DACA is not reviewable by the courts on several grounds, emphasizing that DACA was illegal in the first place. Indeed, in his closing statement he defended the decision to end the program, addressing Olson’s concerns about the lack of justification, declaring, “We own this.”
Justice Ruth Bader Ginsburg was the first to interject, pointing out that she thought there was a “strange element to [Francisco’s] argument.” She noted that Francisco said that the agency had no discretion in creating DACA because it was illegal, but that the government now has discretion to terminate the program on the grounds that the program was illegal to begin with.
The challengers, particularly in the suit brought by Microsoft and Princeton University, are strictly focusing on the way in which the Trump administration is attempting to end the program. They want to leave no chance that the conservatives on the Court are able to oust an entire program by issuing a more sweeping judgment based solely on the technical question at hand. Microsoft has 66 employees who are DACA recipients, and Princeton has accepted a handful of DACA recipients as students every year since the program’s inception. The two challengers argue that rescinding DACA harms them and their ability to bring in the best and the brightest. One of Princeton’s students, recent graduate Maria Perales Sanchez, is a plaintiff in the case.
Nonetheless, several justices sought to move the argument on to the merits of the case, considering whether the program itself was a legal use of executive authority. This is dangerous territory for DACA supporters, as the justices could rule DACA illegal, ensuring that no future president could revive the program.
The government is arguing that it is within its discretion to end any administrative program that was created by executive action especially, and its decision is presumptively unreviewable by the courts. But because of Trump’s and his administration’s negative statements about the program, ending it could be seen as “arbitrary and capricious” under the Administrative Procedure Act. As The New York Times reported yesterday, lower courts saw the program’s rescission as just that—arbitrary and capricious—because there was a “flawed legal rationale” and “no policy justifications.” As the Times explains, “Had the administration simply declared that it was changing direction as a matter of policy, the rulings indicated, the termination of DACA would have been a routine exercise of executive discretion.”
Despite the fact that Nielsen’s memo was colored throughout by the government belief in the likely illegality of DACA, Sotomayor objected. “I have always had some difficulty understanding the illegality of DACA,” she said. “DAPA, I understand.” She noted that unlike DAPA, a similar program now working through the courts that would have given protection to the parents of citizens, DACA lays out no path to citizenship. It only allows a protection that the government could revoke at any time. Ginsburg agreed, adding that the “whole memo is infected by [the belief that] DACA is illegal.”
When the Trump administration announced DACA’s termination, immigrant rights’ groups immediately sued for a stay of the decision, winning some relief for recipients. The government is still accepting renewal applications, but no new applications are being processed.
Chief Justice John Roberts could be the most consequential opinion, given his swing vote status on the last two major immigration decisions by the Court. On the travel ban, he sided with the majority—four conservatives. On the census question, he also sided with the majority—four liberals.
The oral argument included three different federal cases consolidated into one hour: Department of Homeland Security v. Regents of the University of California, Trump v. NAACP, and McAleenan v. Vidal. The case may easily be the most high-profile the Court has accepted this term.
