Outside the Beltway

Supreme Court Set To Hear DACA Challenge

Tomorrow, the Supreme Court will hear argument in a case likely to decide the fate of former President Obama's DACA program.

Doug Mataconis · Monday, November 11, 2019 · 3 comments

Tomorrow, the Supreme Court will take up the Administration’s appeal of a decision out of the Ninth Circuit Court of Appeals finding that the President’s attempt to end the Deferred Action for Childhood Arrivals (DACA) program, a decision that will likely decide the fate of the nearly one million people who have benefited from the program and the estimated 1.5 million who could benefit from its expansion:

The Trump administration has said it moved to cut off the program under the threat of a lawsuit from Texas and other states, raising the prospect of a chaotic end.

Then-Attorney General Jeff Sessions determined DACA to be unlawful because Obama did not have the authority to adopt it in the first place. Sessions cited an expansion of the DACA program and a similar effort to protect undocumented immigrants who are parents of American children that were struck down by federal courts. A 4-4 Supreme Court tie in 2016 affirmed the lower court rulings.

Texas and other Republican-led states eventually did sue and won a partial victory in a federal court in Texas.

The administration’s best argument is a simple one, said Josh Blackman, a professor at South Texas College of Law in Houston: “The Supreme Court should allow the Trump Administration to wind down a policy it found to be unlawful, even if reasonable judges disagree about DACA’s legality.”

The program — Deferred Action for Childhood Arrivals — protects about 700,000 people, known as dreamers, who were brought to the U.S. illegally as children or came with families that overstayed visas.

The DACA protections seem certain to remain in effect at least until the high court issues its decision.

The administration had asked the court to take up and decide the appeals by the end of this month. The justices declined to do so and held on to the appeals for nearly five months with no action and no explanation. The court did nothing Friday to clear up the reasons for the long delay, although immigration experts have speculated that the court could have been waiting for other appellate rulings, legislation in Congress that would have put the program on a surer footing or additional administration action.

The DACA saga began, of course, in September 2017 when the President issued an Executive Order providing that the DACA program would be terminated in six months time, meaning that it would have ended in March 2018. At the time, Republicans in both the House and the Senate, as well as the President himself, claimed that they wanted to find a way to codify the DACA program so that it would not end, there were even some suggestions that the GOP would be willing to expand eligibility for the program beyond the roughly 800,000 people who currently benefit from it cover as many as 2.5 million other adults who were brought to the United States as children but were not eligible for DACA relief under the criteria established by former President Obama.

When it came time to deliver on those promises, Republicans in both the House and Senate failed to even put forward a bill that would accomplish this. This led to two brief government shutdown crises at the start of 2018 as Democrats tried to use approval of a spending package to get protection for DACA beneficiaries. At one point, Senate Minority Leader Chuck Schumer had apparently reached a deal with the President that would have provided relief for DACA beneficiaries in exchange for $25 billion in funding for the President’s border wall, only to find out hours later that the President had changed his mind. This led Schumer to quip that negotiating with Trump was like negotiating with Jello. There were also unsuccessful efforts to bring a resolution to the DACA issue during the extended shutdown that ran from the end of December 2018 to the end of January 2019, but that also proved to be fruitless.

While these legislative moves were taking place, a number of legal challenges to the President’s action were taking place across the country. These developments resulted from lawsuits that had been filed by individual DACA recipients, by several state university systems, and by several states with a direct interest in the DACA program. The result has been that, while Congress and the President have dithered, the Federal Courts have been quite active in weighing in on the legality of the President’s action.

In January 2018, a District Court Judge in San Francisco ruled that the Administration’s efforts to repeal the program violated the law and issued an injunction barring the program from going into effect. That ruling was followed roughly a month later by a ruling from a second Federal Judge in Maryland who issued a similar ruling on much the same grounds as his colleague in San Francisco. In October 2018, a Federal Judge in New York City denied a motion seeking to dismiss a similar lawsuit against the Trump Administration order in a ruling that cited many of the same grounds as the previous two orders and which also cited in support of its conclusions rhetoric from the President both in his speeches and in his Tweets. Several months after this, in what many saw as a major setback for the Administration, the Supreme Court declined to disturb the injunction in the San Francisco case, meaning that the government was forced to go through the Ninth Circuit to appeal that case.

In April of last year a District Court Judge in Washington, D.C. issued yet another ruling placing a hold on the Administration’s attempt to bring an end to the DACA program. That ruling was significant in that it differed in one significant respect from the previous respects. Specifically, in addition to keeping the program in place, the ruling also directed the Trump Administration to begin accepting new applicants again.

Around the same time as the ruling in the case in the District of Columbia, the Ninth Circuit largely upheld the decision issued in January of last year by Judge William Alsop and kept in place a nationwide injunction barring enforcement of the Administration’s decision for the time being. Finally, and most recently, the Fourth Circuit Court of Appeals upheld the decision of a Maryland District Court Judge against the Administration’s attempt to end the DACA program, enjoining the Administration from enforcing the September 2017 order, and ordering the Administration to continue processing renewals for current DACA beneficiaries. All of these cases eventually made their way to the Supreme Court and will now be heard in the term that begins in October. In all likelihood that means that it is likely that the Court will rule on the Administration’s action at some point during the middle of the 2020 election cycle.

At this early stage, it’s difficult to say how the Court may be inclined to rule in this case. It’s worth noting, though, that in the majority of the cases noted above the primary basis upon which the District Courts and Circuit Courts of Appeal have ruled against the Administration was its failure to comply with various provisions of the Administrative Procedure Act (APA) which governs how Executive Branch agencies must act when taking regulatory action. Among other things, this law requires the agencies to provide a factual basis supporting the action and a notice and comment period during which members of the public can state their support or opposition to the action on the record. In each of the cases, the Courts below ruled that the Trump Administration did not follow those procedures and that the justification for ending the program was not sufficient. This is similar to the basis on which the Supreme Court, in its decision released yesterday, ruled against the Administration with respect to the use of the 2020 Census to inquire about citizenship.

With respect to the appeal itself, it’s also worth noting the two questions the Court will be reviewing, as summarized at the SCOTUSBlog Information Page for the consolidated cases:

(1) Whether the Department of Homeland Security’s decision to wind down the Deferred Action for Childhood Arrivals policy is judicially reviewable; and (2) whether DHS’s decision to wind down the DACA policy is lawful.

These are the two questions that the Court will consider on appeal. The first question basically goes to the question of whether or not the parties before the court in these consolidated cases have standing to bring the lawsuits in question and whether the Federal Courts can review the President’s action as a result. If that question is answered in the negative, then the rest of the case is basically moot and the DACA program will come to an end. If it’s answered in the affirmative then we get to the APA and other legal issues that form the basis for the challenge to President Trump’s action. At this early stage, of course, any prediction of how the Court will rule on either question is pure speculation. At the very least, we’ll have to wait until oral argument to get an idea of where the Justices may stand.