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Supreme Court upholds DACA

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Supreme Court upholds DACA

In 5-4 decision, the court ruled that the Trump administration violated the law by ending Deferred Action for Childhood Arrivals in 2017

  • A young man fills out a form giving him DACA, or Deferred Action for Childhood Arrivals, during a clinic in Tucson in Feb. 2017.
    Paul Ingram/TucsonSentinel.comA young man fills out a form giving him DACA, or Deferred Action for Childhood Arrivals, during a clinic in Tucson in Feb. 2017.

The U.S. Supreme Court ruled in a 5-4 decision that the Trump administration violated the law when it ended the Deferred Action for Childhood Arrivals, an Obama-era program that currently protects about 644,000 people from deportation—including about 35,000 people in Arizona alone. 

The court's decision over turns the Trump administration's 2017 attempt to undo DACA, and reopens to the program to new applicants.

While DACA recipients came as children, on average around age 7, in the intervening years, they have grown up and begun to have children of their own.  In 2017, a report from the U.S. Citizenship and Immigration Service noted that the average age of DACA recipient was around 24-years-old, and now around 254,000 U.S. born children have parents who are DACA recipients, and about 1.5 million people live in households with at least one DACA recipient.

Led by Chief Justice John Roberts, and joined by justices Ruth Bader Ginsberg, Stephen Breyer, Elena Kagan and Sonia Sotomayor, the court ruled that the 2017 decision to end DACA was "arbitrary and capricious," and that when former DHS Secretary Elaine Duke—who replaced John Kelly who became the White House Chief of Staff—rescinded DACA, she violated the Administrative Procedure Act. 

This was the second major defeat for the Trump administration at the Supreme Court this week. 

Lower courts have rejected the Trump administration's moves, and Roberts wrote that the government did not properly weigh how ending the program would affect those who needed its protections against deportation, and a legal work permit. 

"We do not decide whether DACA or its rescission are sound policies," Roberts wrote, rather the court considered only whether DHS "complied with the procedural requirement that it provide a reasoned explanation for its action. Here the agency failed to consider the conspicuous issues of whether to retain forbearance and what if anything to do about the hardship to DACA recipients. That dual failure raises doubts about whether the agency appreciated the scope of its discretion or exercised that discretion in a reasonable manner." 

Justice Clarence Thomas led the dissent, writing that the program was illegal and that the majority "decided to prolong DHS’ initial overreach by providing a stopgap measure of its own." 

"Today’s decision must be recognized for what it is: an effort to avoid a politically controversial but legally correct decision. The Court could have made clear that the solution respondents seek must come from the Legislative Branch," Thomas wrote. "In doing so, it has given the green light for future political battles to be fought in this Court rather than where they right- fully belong—the political branches. Such timidity forsakes the Court’s duty to apply the law according to neutral principles, and the ripple effects of the majority’s error will be felt throughout our system of self-government." 

"Perhaps even more unfortunately, the majority’s holding creates perverse incentives, particularly for outgoing administrations. Under the auspices of today’s decision, administrations can bind their successors by unlawfully adopting significant legal changes through Executive Branch agency memoranda," Thomas argued. 

President Donald Trump tweeted his fury about the decision, calling the "horrible & politically charged decisions coming out of the Supreme Court are shotgun blasts into the face of people that are proud to call themselves Republicans or Conservatives. We need more Justices or we will lose our 2nd. Amendment & everything else."

Like Trump, former President Barack Obama issued his own statement on Twitter, writing “eight years ago this week, we protected young people who were raised as part of our American family from deportation. Today, I’m happy for them, their families, and all of us,” he said.
“We may look different and come from everywhere, but what makes us American are our shared ideals now to stand up for those ideals, we have to move forward,” he said, adding that voters should elect Joe Biden and a Democratic Congress that “does its job to protect” Dreamers, and “finally creates a system that’s truly worthy of this nation of immigrants once and for all.”

Sessions announces program's end

In September 2017, former Attorney General Jeff Sessions said that the federal government would stop accepting new applications as part of an "orderly wind down" of the program. Under plan outlined by Sessions, DACA permits that expired from September 5, 2017 through March 5, 2018 could be renewed for an additional two years, but only if the applications were submitted to officials before October 5, 2017. 

During a press conference, Sessions called DACA "an open-ended circumvention of immigration laws" that was "implemented unilaterally, to great controversy and legal concern." 

"The executive branch through DACA deliberately sought to achieve what the legislative branch specifically refused to authorized on multiple occasions," Sessions said.

Sessions argued that a similar Obama-era program, Deferred Action for Parents of Americans, or DAPA, had been blocked by a federal court in Texas, and that because DACA was similar in scope, both programs should be ended. Duke followed the former AG's advice and decided to terminate the program. 

As Roberts put it, Duke "explained that DHS would no longer accept new applications, but that existing DACA recipients whose benefits were set to expire within six months could apply for a two-year renewal. For all other DACA recipients, previously issued grants of relief would expire on their own terms, with no prospect for renewal." 

The court's decision does not determine whether DHS may rescind DACA, as Roberts put it, "All parties agree that it may. The dispute is instead primarily about the procedure the agency followed in doing so." 

Advocates filed five separate lawsuits, including one led by former Homeland Security Secretary Janet Napolitano, an ex-governor of Arizona who now serves as the president of the University of California. These were consolidated together under Department of Homeland Security v. Regents of the University of California. 

In January 2018, a federal judge ruled against the Trump administration, "arbitrary, capricious, an abuse of discretion, or not otherwise in accordance of the law" and ordered DHS to resume accepting renewal applications, allowing thousands to update their DACA status while the lawsuits continued, but otherwise limiting the program.

Overall about 1.3 million people are eligible for protections under DACA from about 30 different countries, according to the Migrant Policy Institute.

Among the 700,000 DACA recipients are about 81,000 "Dreamers" who are LGBTQ,  a report from the Williams Institute at UCLA's School of Law said. "Undocumented LGBT young adults are a particularly vulnerable population," said the study's lead author Kerith J. Conron, the Blachford-Cooper Distinguished Scholar and Research Director at the Williams Institute. "DACA helps many of them to get an education, find employment, and support themselves and their families while contributing to the U.S. economy."

Advocates and others, celebrate court's decision, call for legislative action

"Today’s win is what happens when directly impacted communities demand change," wrote Courtney Bourgoin, a member of the Sierra Club representing a coalition of groups, including the National Immigration Law Center and America's Voice under the Home is Here coalition. "The Supreme Court sided with the American people - who overwhelmingly support the DACA program - and they rejected Trump’s divisive and hate-filled agenda. This decision will help protect the lives of nearly 700,000 current DACA recipients and their families from Trump’s cruelty — for now." 

"The Supreme Court rightly ruled in favor of over 700,000 citizens in waiting, their families, and our country’s future," wrote Andrea Flores, the deputy director of immigration policy at the American Civil Liberties Union. "The courts and the American people agree: It’s time for President Trump and Stephen Miller to end their crusade against Dreamers and immigrants writ large. This decision allows DACA recipients to live and work without the daily fear of deportation, and confirms what we have always known: America is their home." 

"Today, we celebrate but know that the fight is not over. For nearly three years, DACA recipients have lived in a legal limbo brought on by the Trump administration," Flores wrote, adding that the House of Representatives has already passed H.R. 6, the American Dream and Promise Act. "It is incumbent upon the Senate to do the same to permanently protect Dreamers," she said, adding that the ACLU "won’t rest until Dreamers can."

Senator Kyrsten Sinema and U.S. Rep. Raúl Grijalva immediately praised the decision, while Senator Martha McSally joined Grijalva in calling for legislation. 

"Arizona Dreamers graduate from our schools, contribute to our economy, and enlist in our military to serve our nation. They deserve a chance to be recognized as Americans," said Sinema. "Today's decision provides needed relief to Dreamers, and I'll continue working to find a bipartisan, commonsense solution to permanently protect Dreamers, fix our broken immigration system, and secure our border to keep Arizona communities safe and secure." 

Grijalva called this a "victory for the young immigrants who dared to dream." 

"It’s a victory for those who fought from childhood and well into their adult lives to send a message that they have every right to exist in the only home they have ever known. It’s a strong rejection of one of President Trump’s central ideas of his presidency that seeks to rewrite America’s immigrant heritage and demonize those who don’t look like him," Grijalva said, adding that "we knew all along that DACA was lawful and that Trump and Stephen Miller recklessly ended the program for racist reasons and put the lives of 700,000 young immigrants in limbo. I’m pleased the majority of the Supreme Court saw Trump’s actions for the true fraud they were." 

Grijalva also called on Congress to take legislative action to protect DACA recipients, as well as those on Temporary Protected Status—a form of immigration relief that is regularly given to people from countries where there is a natural disaster, famine, war or a major epidemic—and Deferred Enforced Departure—a program similar to TPS that has been extended to people from Liberia—and create the "pathway to citizenship that they deserve." 

"The House has already passed the Dream and Promise Act, and it’s time for the Leader McConnell and the U.S. Senate to do the same," Grijalva said. 

In a series of tweets, McSally wrote "Today’s DACA ruling gives the White House and Congress the opportunity to do what is right and solve this issue with thoughtful legislation." 

"I’ve fought many times in Congress to provide a legal status for DACA recipients while enhancing border security, closing loopholes in our laws, and modernizing our legal immigration system. I stand ready to continue that work in a bipartisan way," McSally said. 

McSally's opponent for the 2020 Senate election, Mark Kelly called the Supreme Court's decision a "relief for tens of thousands of Arizona Dreamers and their families and the result of a lot of hard work by Dreamers, community leaders, and advocates who bravely made their voices heard." 

"Their home is here, and I stand with Arizona Dreamers in celebrating this moment. Dreamers are frontline workers, entrepreneurs, educators, veterans, and community leaders who make our state stronger. Even as the DACA program continues, it is well past time for Congress to do its part and pass an earned pathway to citizenship so Dreamers can continue to thrive here and contribute to our communities as American citizens," Kelly said. 

Rev. Mary Katherine Morn, the president of the Unitarian Universalist Service Committee praised the decision as "long-overdue relief" for thousands, and called on Congress to pass a House resolution that would provide a path to citizenship for DACA recipients, and holders of Temporary Protected Status,  In recent years, the Trump administration has drawn down TPS protections for about 330,000 people from 10 different countries. 

"The court’s ruling indisputably offers much-needed relief to thousands of DACA holders, who have been forced to wait years without knowing how long their protections from deportation will last,"said Morn. "The result has been countless lives interrupted and overcome with fear. The administration chose to subject these young people—and their more than 250,000 U.S. citizen children—to needless terror largely in order to bargain for other anti-immigrant policy goals. One does not need to look further for an example of gratuitous cruelty."

"The Supreme Court’s decision today cannot wholly undo these earlier harms; likewise, it is beyond the court’s power to grant permanent status to DACA recipients. As a result, they, like hundreds of thousands of TPS holders—a similarly-situated group of immigrants—remain at risk of losing status from future executive action. Only Congress has the power to grant the path to citizenship that will protect DACA and TPS holders permanently from the threat of deportation and to protect family unity in the face of family separation," Morn said. 

On Thursday, Noel J. Francisco, the Solicitor General for the United States, resigned from his position In a letter to Attorney General William Barr, Francisco wrote that he wanted to "to return to the private sector and spend more time with" family.

Barr said in a statement that Francisco had "represented the United States superbly before the Supreme Court," and that his "skilled advocacy has been instrumental to historic victories on behalf of the President’s national security authority, the free speech rights of public employees, and property owners’ access to federal courts, among many other significant accomplishments." 

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