Five things to watch at Supreme Court's DACA hearings

Five things to watch at Supreme Court’s DACA hearings

Originally published by The Hill

The Supreme Court will hear arguments Tuesday on three cases against President Trump's decision in 2017 to end deportation protections for so-called Dreamers.

Three appeals courts have ruled against Trump's decision to end the Deferred Action for Childhood Arrivals (DACA) program, which grants deferral from deportation and work permits to nearly 700,000 undocumented immigrants who arrived in the country as children.

Now, the justices must decide whether the decision to end the program was based on legally sound reasons.

Here are five things to know about Tuesday's hearings:

The administration's case

The Trump administration has argued that DACA is unlawful and said that ending it deters illegal immigration.

Court watchers can expect skirmishing over the justices’ power to second-guess the administration’s move. But the substantive fight will turn on whether the decisionmaking process behind the DACA repeal was lawful.

The Trump administration says it rescinded DACA because it is illegal, arguing that President Obama engaged in “an unconstitutional exercise of authority” when he set up the program in 2012 through executive action.

The administration also argues that the program suffers from “the same legal and constitutional defects” as a now-defunct expansion policy for DACA.

That companion program, known as Deferred Action for Parents of Americans, was eventually struck down in 2016 after a 4-4 Supreme Court tie left a lower court ruling against it in place.

Some analysts say these arguments provide little cover to the administration, which must convince a majority of justices that its DACA rescission was not “arbitrary and capricious” for the rollback to survive the legal challenge.

The administration’s rationale traces back to a September 2017 memorandum announcing the repeal.

Written by then-acting Homeland Security Secretary Elaine Duke, who reportedly had grave misgivings about lifting the deportation protections, the memo relied solely on arguments from then-Attorney General Jeff Sessions about DACA’s illegality.

One lower court judge described the memo, which presented no policy arguments, as “barebones.” 

Lower court judges were unpersuaded by the administration’s justification, saying it was done in an arbitrary and capricious manner and thus illegal.

Later, the administration sought to bolster its case for rescission. Then-Homeland Security Secretary Kirstjen Nielsen told a lower court judge that, in addition to the reasons outlined in Duke’s memo, the administration repealed DACA to deter future illegal immigration.

That court was also unpersuaded.

All eyes on Chief Justice Roberts  

Chief Justice John Roberts, a George W. Bush appointee, will be the most closely watched jurist as the court considers the fate of DACA.

Roberts penned the majority opinions in two previous blockbuster cases involving Trump’s immigration policy and may figure as something of a swing vote here. 

In the travel ban case before the court in 2018, Roberts sided with the Supreme Court’s conservative wing to uphold restrictions on travel to the United States from certain foreign countries in what critics had derided as a "Muslim ban." 

But last term, Roberts joined the court’s liberal justices in voting to block the administration from adding a citizenship question to the 2020 census. 

In an opinion with resonance in the DACA case, Roberts wrote that agencies must offer “genuine justifications for important decisions, reasons that can be scrutinized by courts and the interested public.” 

Theodore Olson, a former solicitor general and one of two lawyers arguing to preserve DACA, cited Roberts’s own words in the opening paragraph of his brief. Olson argued that the Trump administration’s DACA repeal failed to clear the legal bar Roberts set out in the previous ruling.

“An administration may impose new or different priorities,” Olson wrote, “but only if it adheres to [statutory] requirements and clearly states its policy choices so that it can be held publicly accountable for them.” 

Kevin Johnson, an immigration law expert at the University of California, Davis, told The Hill that he could see Roberts ruling against the Trump administration on grounds similar to those in the census case. 

“Roberts may believe that the Trump administration's explanation for rescinding DACA — that it was unlawful — is suspect, to say the least,” Johnson said.

DACA recipients, allies flex political muscle

Groups of all stripes — from corporate interests to religious institutions to local, state and foreign governments — have come out in favor of DACA.

Assuming a reversal, those groups will be a powerful force to push Congress to act quickly — and for the White House to play ball.

After Trump's rescission of the program, a bipartisan Dreamers-for-border-wall deal was hashed out only to be scrapped after the White House signaled its opposition.

Sen. Dick Durbin (D-Ill.), the author of the original Dream Act, said last week the Trump administration has "poisoned the well" and is incapable of seeing through a negotiation on Dreamers.

But the popularity of Dreamers nationwide — and their wide network of support — could force Trump to choose between his base and the wider electorate ahead of a tough reelection bid.

Still, if the court upholds Trump's order, DACA recipients can at the very least expect their two-year permits to become nonrenewable.

That could further energize DACA recipients, who've been among the most avid campaigners for immigrants and Latinos to exercise their political rights.

"Dreamers are some of the most effective advocates for voter registration because they can come up to a person and say, 'You have a right that I covet, and why aren't you exercising it?'" Democratic National Committee Chairman Tom Perez told The Hill last week.

What happens next?

The court's first task will be to decide whether it has jurisdiction to hear the case. If not, the justices would vacate the lower courts’ rulings against the Trump policy, in effect agreeing that the Homeland Security Department had the authority to end DACA.

That decision would render valid Trump's 2017 decision, effectively ending the program.

But if the court decides it has jurisdiction to hear the case, it would then have to decide whether Trump's order was lawful.

A decision upholding the lower courts' findings that the rescission was arbitrary and capricious, and therefore unlawful, would force the Homeland Security Department to continue administering the DACA program, including managing renewals and new applications.

If the court decides it has jurisdiction but the order was lawful, the reasoning behind the justices' decision will provide a roadmap for the downscaling of the program or its termination.

Dreamers and their allies have sounded the alarm about their worst-case scenario: a decision rendering all DACA beneficiaries undocumented and deportable.

Brad Smith, president of Microsoft — a company that in conjunction with Princeton University brought one of the cases before the court — wrote Friday that a reversal would hurt American innovation.

"The case speaks to the impact the rescission has on our business, company, employees and the hundreds of thousands of Dreamers across the country. It also has a broader impact on the country’s flow of talent and innovation economy, a perspective that we share with Princeton," wrote Smith.

A report by the Immigration Initiative at Harvard University showed that DACA beneficiaries and their families — more than 250,000 American-citizen children are dependents of DACA recipients — have demonstrably better economic, social and even psychological outcomes due to the program's benefits.

And a reversal and wind-down or cancellation of the program would be certain to detonate a new round of legislative infighting, as Trump's order originally did in 2017, and spill over to the 2020 elections.

Court’s view of presidential power

The Supreme Court’s ruling in the DACA case could send an important signal about how much deference the justices think a president deserves in carrying out policies. 

If the court rules that the Trump administration’s rescission of DACA was unlawful, then future presidents would be bound to give a more compelling explanation than the Trump administration’s minimal rationale for unwinding the Obama-era program.

“This would be a meaningful decision,” said Johnson, of UC Davis. “Here, the claim that DACA was unlawful — with little legal analysis — is hard to accept unless one is highly deferential to the executive branch.”

On the other hand, a ruling in favor of the Trump administration’s DACA repeal would add to the body of law giving broad deference to the executive’s immigration decisions.

That outcome would be consistent with a 1993 decision upholding a policy of intercepting and returning boats illegally carrying Haitian passengers to the United States.

A decision upholding the Trump administration's move “would not be pathbreaking,” Johnson said, adding, “It would simply reinforce established precedent.”

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