The US Supreme Court protects Dreamers...for now.

On June 18, 2020, the Supreme Court ruled that the Trump administration cannot immediately end the Deferred Action for Childhood Arrivals (DACA) program. DACA was established in an executive branch memorandum by President Obama in 2012 and protects undocumented immigrants brought to the US as children, known as “Dreamers,” from deportation. In September 2017, President Trump announced a plan to rescind DACA, followed by an order by the Department of Homeland Security (DHS). This triggered several lawsuits seeking to block the order. After a series of rulings in lower-level courts that temporarily prevented the order from taking hold, the Supreme Court ruled 5-4 to reverse the order, which the majority determined to be not adequately justified under the Administrative Procedure Act (APA).

Established by President Obama in 2012, DACA provides undocumented immigrants brought to the US as children, or Dreamers, with a renewable two-year period of deferred action from deportation. It also allows Dreamers to become eligible for a work permit in the US. Unlike the proposed DREAM Act, however, it does not provide Dreamers with a path to citizenship. As of 2020, it is estimated that 690,000 to 800,000 individuals are protected under DACA.

In 2014, President Obama announced a plan (DAPA) to expand DACA to cover undocumented parents of children who are US citizens or lawful permanent residents. Several states filed lawsuits against the federal government and a temporary injunction blocking the order was issued in 2015. The injunction centered around part of the plan that would make DAPA recipients eligible for benefits such as work authorization, Social Security, and Medicare, and was upheld by the Supreme Court in a 4-4 split decision in 2016. In June 2017, the Trump administration officially rescinded DAPA.

In September 2017, the Trump administration sent a letter to the Department of Homeland Security advising that DACA should be terminated as well, noting that DACA suffers from the “same legal...defects” as DAPA. This was followed by an official DHS memo authored by Acting Secretary Elaine Duke ordering the rescission of DACA. Soon after, a number of states and organizations filed lawsuits challenging the order, including the University of California, who argued that it “wrongly and unconstitutionally [violated] the rights of the University and its students.”

In January 2018, a District Court judge issued an injunction to prevent the government from ending the program while the lawsuit was still pending, and in November of the same year, the Ninth Circuit Court of Appeals upheld the injunction, ruling that DHS’ justification for the order was unjustified under the APA. The Justice Department then petitioned the Supreme Court to review the Ninth Circuit’s decision, which it agreed to in June 2019. The Court heard oral arguments in November 2019 and delivered in its opinion in June 2020.

The majority opinion, authored by Chief Justice Roberts, argues that the DHS order to end DACA is unconstitutional because its justification is arbitrary and capricious, a violation of the APA. He notes that the case is not about whether DHS has the right to rescind DACA, but “the procedure the agency followed in doing so.” The key component of this procedure is the DHS memo, which presents the “legal defects” of DAPA as a justification for rescinding DACA. He points out, however, that because the previous ruling against DAPA was based on the benefits associated with the plan and not its deferral of deportations, this is not a sufficient justification for ending the deferred action policy of DACA. Therefore, the opinion determines that the administration’s justification for the program's ending was arbitrary and capricious in violation of the APA and thus unconstitutional. Justices Sotomayor, Breyer, Ginsburg, and Kagan joined Roberts in the majority.

The dissenting opinion, written by Justice Thomas, argues that the original creation of DACA via executive branch memorandum was unlawful, therefore the decision to rescind DACA is lawful. He states: “The decision to rescind an unlawful policy is per se lawful. No additional policy justifications are necessary.” He also adds that the majority’s decision creates “perverse incentives” for outgoing administrations to unlawfully force policies on their successors via executive branch memoranda, which can now only be undone by the Supreme Court. He describes the majority’s decision as an “effort to avoid a politically controversial but legally correct decision” and only serving to prolong the initial unlawful action, the implementation of DACA, by DHS. Justices Kavanaugh, Alito, and Gorsuch joined Thomas in dissent.

Because the decision was based on procedural issues with the DHS order, the Trump administration will likely still be able to rescind DACA if it offers proper justification. On the same day the decision was announced, President Trump wrote on Twitter: “now we have to start this process all over again.” So unless the administration chooses not to act in the coming months and Trump loses the election, it seems this win for Dreamers is only temporary.

Stay tuned for more news about this ongoing topic!


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