WASHINGTON—Former President Barack Obama’s program that temporarily shielded young people who came to the United States illegally from being deported should be struck down as unconstitutional because it was never authorized by Congress, the Trump administration told the Supreme Court on Nov. 12.
There are about 700,000 or more individuals eligible under the Deferred Action for Childhood Arrivals (DACA). They are a subset of about 4 million “Dreamers,” many of whom failed to apply for relief under DACA, but could conceivably qualify under the kind of amnesty that Democrats and some Republicans are pushing for in Congress.
Various federal courts blocked the Trump administration from terminating DACA and ordered U.S. Citizenship and Immigration Services (USCIS) to keep taking applications from DACA recipients.
“Many of the people in DACA, no longer very young, are far from ‘angels,’” President Donald Trump wrote on Twitter early on Nov. 12. “Some are very tough, hardened criminals.”
But even if DACA is struck down, it seems unlikely that its recipients will have to leave the country.
When Trump announced he would end DACA in 2017, he expressed sympathy for DACA recipients and said his cancellation of the program would force Democratic lawmakers to make a deal to allow the young people to stay.
He repeated the prediction in the same tweet.
“President Obama said he had no legal right to sign order, but would anyway. If Supreme Court remedies with overturn, a deal will be made with Dems for them to stay!” Trump wrote.
Republicans have long called DACA a brazen power grab, a usurpation of Congress’s constitutionally prescribed role in making laws. Before Obama created DACA in June 2012 with the stroke of a pen, he acknowledged such a program would be unconstitutional, as Hans von Spakovsky of The Heritage Foundation has written.
“I am not king,” Obama said in October 2010, responding to pressure to act. “I can’t do these things just by myself.” In March 2011, he said with “respect to the notion that I can just suspend deportations through executive order, that’s just not the case.”
In May 2011, he said he was unable to “just bypass Congress and change the law myself. But that’s not how a democracy works.”
But 13 months later, Obama did it anyway, unilaterally, by executive action. DACA prevented recipients from being deported, and gave them employment authorization, as well as access to government benefits such as Social Security.
As he created the program, Obama said DACA was “not amnesty, this is not immunity.”
“This is not a path to citizenship. It’s not a permanent fix. This is a temporary stopgap measure that lets us focus our resources wisely while giving a degree of relief and hope to talented, driven, patriotic young people,” Obama said.
After the Trump administration announced it planned to end the program, then-Attorney General Jeff Sessions denounced DACA in September 2017.
DACA “contributed to a surge of unaccompanied minors on the Southern border that yielded terrible humanitarian consequences” and “denied jobs to hundreds of thousands of Americans by allowing those same jobs to go to illegal aliens,” he said at the time.
Unlawful Versus ‘Reliance Interests’
On the court’s docket for Nov. 12 were three separate lawsuits that were consolidated and heard as one during oral arguments. The cases are Department of Homeland Security v. Regents of the University of California, Trump v. NAACP, and McAleenan v. Vidal.
The conservative justices who constitute a 5–4 majority on the high court seemed broadly sympathetic to the administration’s argument that the highly controversial DACA program, which for seven years has halted removal proceedings against hundreds of thousands of young people, was illegitimate and unlawful.
The liberal justices seemed more interested in the finer points of the legal documents signed by government officials that purported to end the program and in what they called the “reliance interests” of those who have lived, worked, and otherwise benefited under DACA.
Justice Sonia Sotomayor told U.S. Solicitor General Noel Francisco during oral arguments that DACA recipients were entitled to something more than the “six months” of advance notice of the program’s discontinuation that was offered by the administration.
“This is not about the law; this is about our choice to destroy lives,” she said bluntly.
Francisco said the administration acted appropriately.
The rescission of the program, which he called “a temporary stopgap measure,” was “eminently reasonable” and isn’t subject to judicial review, he said.
It “simply ended a previous non-enforcement policy whereby the Department [of Homeland Security] agreed not to enforce the INA [i.e. the Immigration and Nationality Act] against hundreds of thousands of illegal aliens,” he said.
“But the decision whether or not to enforce the law is committed to the agency’s unreviewable discretion, unless a statute restricts it.”
Lawyer Theodore Olson, who represented some of the DACA recipients, told the justices that the decision to end DACA, which affects the “lives of hundreds of thousands of people, which has engendered reliance, which reverses not only a position of … two administrations, but the Office of Legal Counsel, changes policy, then all we’re saying is that there’s a presumption of reviewability of that decision.”
When Justice Brett Kavanaugh asked Olson if the administration has the authority to rescind DACA, Olson acknowledged it had that authority.
Responding to Justices Ruth Bader Ginsburg and Elena Kagan, Francisco said a key problem with DACA is “that there’s no limiting principle” involved in it.
“The theory on which DACA rests effectively allows the government to create a shadow INA for any category of aliens that it chooses to make low-priority targets, a shadow second-tier INA … and you … need to locate something in the INA that confers that kind of broad and unfettered discretion. And there is simply nothing there,” he said.