November 13, 2019

Supreme Court Hears DACA Case

The Supreme Court’s conservative majority signaled support on Tuesday for President Donald Trump’s bid to kill a program that protects hundreds of thousands of immigrants - dubbed ‘Dreamers’ - who entered the United States illegally as children… The court’s ideological divisions were on full display as it heard the administration’s appeal of lower court rulings that blocked the Republican president’s 2017 plan to rescind the Deferred Action for Childhood Arrivals (DACA) program.” Reuters

See past issues

From the Left

The left worries about the consequences of rescinding DACA, and calls for a legislative solution.

From the Right

The right believes the administration should win on the legal merits, and calls for a legislative solution.

“The Trump administration has filed a 57-page brief defending DACA’s rescission in the Supreme Court, and it says not a single word about DACA’s supposed unconstitutionality… Presidents dating back to Dwight Eisenhower have granted deferred action status to immigrants who would be otherwise removable, including on the scale presented by DACA: A 1987 Reagan administration program authorized relief to some 1.5 million undocumented people… Trump himself made clear that he did not believe DACA exceeded his constitutional or statutory authority. After all, on the exact day the Department of Homeland Security announced DACA’s rescission, the president tweeted that if Congress would not legalize DACA, he would ‘revisit this issue’ himself.”
Aaron Tang, Slate

“Until now, every administration over the past 60 years has adopted similar humanitarian policies. In 1956, President Dwight Eisenhower protected tens of thousands of Hungarian refugees from deportation after they fled Soviet Union rule; Presidents Eisenhower, John Kennedy, Lyndon Johnson and Richard Nixon protected more than 600,000 Cuban immigrants escaping an oppressive regime; and President Bill Clinton established a deferred action program for those petitioning for relief under the Violence Against Women Act of 1994… To date, five federal courts have found the administration’s decision to end the [DACA] program arbitrary and capricious.”
Janet Napolitano and John A. Perez, USA Today

“One principle of administrative law, codified in the Administrative Procedure Act, is that ‘legislative rules’ are to be announced in advance, giving the public a chance to comment before a final rule issues… DHS had not used notice and comment to announceDACA. But rescinding a program may be different from announcing one, because of what lawyers call ‘reliance interests’... The day before DACA was announced, no one had a right to expect it, and no one had made use of it. But after DACA went into operation, nearly 900,000 people took advantage of it. Relying on the government’s description of the program, they risked eventual deportation by revealing their personal information to DHS; in exchange, they received ‘work authorization,’ which meant they could apply for driver’s licenses, attend school, and hold jobs like other residents. Rescinding the program without warning would jerk the rug out from under them.”
Garrett Epps, The Atlantic

The administration’s core argument is that the decision to end DACA is not reviewable in court in the first place, that it is the type of decision that is ‘committed to agency discretion’ and so not open to challenge under the Administrative Procedure Act. As the plaintiffs’ briefs point out, that is a strange argument, because if the administration is right that DACA was illegal from the start, then ending it is a matter of legal compulsion rather than discretion; in any event, legality is quintessentially a question for judges…

“The court’s eventual decision in the case… is obviously of vital importance to the young people who in the seven years since DACA began have been able to study, work legally and start families. But the decision will also be important in defining the court’s relationship to a president who behaves as if he has the Supreme Court in his pocket. It will indicate whether the Roberts court — more specifically, the chief justice himself — will continue to insist on believable explanations from an administration that often appears incapable of giving one.”
Linda Greenhouse, New York Times

“No matter how the U.S. Supreme Court rules… the fact that the Deferred Action For Childhood Arrivals (DACA) program came down to an up or down vote of six men and three women is itself a lesson in how Washington works — which is to say, not well. Only the most anti-immigrant extremist believes the 700,000 or so individuals eligible for the DACA program — straight-arrow young people with no criminal record, a high school degree and, in some cases, a record of U.S. military service — should be expelled from this country, the only home many of them have ever known.”
Editorial Board, Baltimore Sun

“In the expansive realm of congressional dysfunction, there are few recent examples that surpass the failure to shield from deportation hundreds of thousands of unauthorized migrants, now in their 20s and 30s, who have grown up, studied and entered the job force after being brought to the United States as children… It was August 2001 when then-Sen. Orrin G. Hatch, a Utah Republican, and Sen. Richard J. Durbin, an Illinois Democrat, introduced the Dream Act, outlining a pathway to legal permanent residency for migrants who entered the United States as minors, usually with their parents. Since then, repeated iterations of that measure have become enmeshed in the broader partisan impasse over immigration, even as lawmakers, including many Republicans, voiced ritual sympathy for dreamers…

“An attempt to break the logjam last year, with a compromise pairing a long-term fix for the dreamers with funding for border security, including President Trump’s wall, fizzled in the Senate when he threatened a veto. Now that the president is building portions of the wall anyway, by diverting funds appropriated by Congress for the military, what possible justification can lawmakers find to avoid doing the moral and humane thing by guaranteeing a normal life for dreamers?”
Editorial Board, Washington Post

From the Right

The right believes the administration should win on the legal merits, and calls for a legislative solution.

“In September 2017 Mr. Trump ordered the program wound down and gave Congress six months to protect [DACA] recipients with an option to renew work permits for two years. The goal was to use the time to negotiate a political compromise, but Democrats walked away after lower courts enjoined the rescission and removed an impetus for compromise… Remarkably, the Ninth Circuit Court of Appeals held that the Administration could end [DACA] for valid policy reasons, but that the justification it gave was arbitrary and capricious…

“This is a case of judges deciding when a President can enforce laws or reverse actions by a previous executive. Will a Democratic President next have to go through notice and comment to alter Mr. Trump’s border enforcement or rescind his ‘national emergency’ at the border? Congress would likely have come to a sensible compromise to protect the young immigrants if judges had not short-circuited the legislative process. [DACA] recipients who in good faith identified themselves to the government should be protected, but this is for Congress and the President to negotiate—not for unelected judges to pre-empt.”
Editorial Board, Wall Street Journal

“A similar program — ‘DAPA,’ for the illegal-immigrant parents of citizen and permanent-resident kids — was actually struck down in a lower court as illegal. (In 2016, the Supreme Court deadlocked 4–4 on the question of DAPA’s legality, making the lower court’s ruling the final say.) But this case isn’t even a direct challenge to the legality of DACA. The Court is being asked to refuse to let the Trump administration end the illegal program voluntarily, on the grounds that the administration didn’t adequately explain its decision to do so…

“The administration’s initial explanation may have been terse, but how much more of a reason does one need than that the program is flagrantly illegal and runs an obvious risk of being struck down in court?”
Robert Verbruggen, National Review

“Even if you think the Deferred Action for Childhood Arrivals program was legal… it was not enacted through the notice-and-comment process mandated by the Administrative Procedure Act for issuing regulations — it was just a memo from then-DHS secretary Janet Napolitano ostensibly outlining prosecutorial-discretion guidelines to her three subordinates who handled immigration matters. The idea that a subsequent administration can’t issue a superseding memo without going through notice-and-comment is ludicrous…

Assuming the Court rules in favor of the administration in, say, June 2020 — what then?…

“One possibility might be to stop issuing renewals immediately but let existing work permits continue until they expire, at an average rate of about 1,000 a day. Then call on Congress to finally pass a targeted package that gives DACAs green cards in exchange for, say, mandatory E-Verify (to make it less likely we’ll have DACA situations in the future) and ending the visa lottery (to partly offset the extra legal immigration represented by the amnesty). Alternatively, the White House could punt until after the election: announce that renewals will continue to be processed, but only through the end of 2020, after which work permits will begin expiring, leaving it to the new Congress and the new (or incumbent) president to work out a deal.”
Mark Krikorian, National Review

Some argue that “it’s true that Mr. Trump campaigned in 2016 on ending DACA, but he also promised to ‘take care’ of the Dreamers. They deserve to be protected, not treated like suckers… The program now affects roughly 700,000 people, including close to 1,000 members of the military. They volunteered to come forward because the U.S. government promised them safe harbor. They were trying to do the right thing. To qualify, they paid a fee, revealed their home address, underwent a criminal-background check and were fingerprinted…

“These immigrants currently pay more than $3 billion in taxes every year, according to an analysis of census data by researchers at New American Economy, and are contributing to retirement programs like Social Security at a time when 77 million baby boomers are in the process of exiting the workforce.”
Jason L. Riley, Wall Street Journal

Nonetheless, the court should rule that “DACA is an unlawful delegation of, or usurpation of, legislative power. DACA is more than a mere expression of prosecutorial discretion. It is a full-fledged policy that gives recipients—some 800,000 so far—lawful status in the United States along with work authorization and access to various benefits such as health care and driver’s licenses. It deals with matters already covered by federal statutes, principally the Immigration and Nationality Act, that can be amended only by act of Congress. It was intended to replicate the essential features of DREAM Act legislation that Congress had considered but failed to approve…

“If federal law grants the president ‘broad discretion’ to make up his own rules for nearly 1 million Dreamers, then Congress has written itself out of immigration policy. Progressives should be equally concerned about the scope of this purported discretion. Under DACA’s conception of prosecutorial discretion, there is no principled reason why Trump cannot direct the EPA to stop enforcing environmental laws against certain classes of industry, or to order the IRS to stop collecting capital-gains tax.”
Adam Freedman, City Journal

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