After eight years in operation, and multiple legal tests in the courts, the federal government’s program that has kept nearly 700,000 undocumented immigrants from being deported still faces a deeply uncertain future. It is true that the program – Deferred Action for Childhood Arrivals (DACA) — was saved by Thursday’s 5-4 decision by the Supreme Court, but that was only a temporary reprieve.
First, both the lead opinion in the Court’s ruling and the major dissenting opinion left the Trump Administration with clear options to try again to shut down the program and begin deporting many who have been temporarily protected by DACA. The decision nullified an earlier attempt by Trump aides to scuttle the program. On Friday, President Trump tweeted that his government would make a new effort to do that by offering new arguments for a shutdown.
Second, a federal judge in south Texas who has been very skeptical of DACA is expected to reopen this summer a case by a group of seven states that are seeking to strike down the program as unconstitutional and as illegal under federal immigration laws and other statutes. So far, no court has ruled on the legality of DACA, and that core issue was not before the Justices this week.
And, third, there is no early prospect that Congress will rescue the program on a lasting basis, which it has the power to do; the lawmakers have never found a way to get that done despite repeated attempts. Only if the makeup of Congress changes significantly after this November’s elections is the program likely to gain the support it would need on Capitol Hill.
The election, as to the presidency as well as Congress, is one of the variables surrounding DACA’s future. Other variables are how quickly the Trump team takes any new steps to close out DACA, and how rapidly the courts would review any challenges to a new shutdown order.
DACA had its eighth anniversary last Monday. It was begun by the Obama Administration after Congress had failed to pass a measure to protect undocumented immigrants who remained in the country illegally after being brought to the U.S. as children.
The program potentially could have reached nearly 2 million, mostly young people. Ultimately, nearly 800,000 qualified for the two-year (renewal) postponements of deportation. During that grace period, DACA recipients could attend school or college, get jobs, or join the U.S. military, and could qualify for some federal benefits.
Many DACA recipients (now often referred to as “Dreamers”) have grown up and made major contributions to life in their communities, although the program offered them no promise of U.S. citizenship and no guarantee that they ultimately would be allowed to stay in the country permanently.
As originally put together by President Obama’s team, the program had never been challenged in court until May 2018, after the federal courts temporarily blocked the Trump Administration effort — begun in 2017 – to end the program altogether.
Earlier, lower federal courts did strike down (and the Supreme Court went along with that on a 4-4 split vote) a 2014 attempt by the Obama Administration to expand DACA and to create a similar deportation-deferral program for undocumented parents of children who were U.S. citizens or had become permanent U.S. residents. (The parents program never went into effect.)
When a group of states that had won those challenges put pressure on the Trump Administration to nullify the original DACA program, the Trump team agreed to do so. It was that effort, temporarily frustrated in lower courts, that led to the Supreme Court’s new decision.
(It is that same group of states opposed to DACA that is preparing to revive their challenge before U.S. District Judge Andrew S. Hanen in Brownsville, Texas, this summer. Hanen earlier ruled against the expanded version of DACA and the similar adults’ program. The new challenge attacking the original DACA in his court in Brownsville had been put on hold while the Supreme Court reviewed the Trump plan to end the program.)
The issue at the center of the controversy now developing in Judge Hanen’s court – that is, was the original DACA program illegal or unconstitutional or both – was not before the Supreme Court this week.
The Justices’ ruling was quite technical, at the legal level. Before getting to that, it is important to point out what was not at issue. It did not rule that the program was legal when set up, nor that it is legal now. It did not rule that President Obama had the constitutional authority to create DACA. And it did not directly advise lower courts on how they should rule in the future on any of those legal or constitutional questions.
If Congress does not act to rescue DACA, or if the program remains intact in the meantime, all of those questions could now be reviewed in lower courts, and could return to the Supreme Court later.
It should be noted that Justice Clarence Thomas’ lead dissenting opinion did argue, specifically, that the program was never legal in any way. Since that view lacked majority support, it had no immediate effect but perhaps could influence how future rulings are made in lower courts.
What was the practical effect of Thursday’s 5-to-4 ruling? It was that, at least for the time being, the original DACA program can continue to operate as it has, awaiting further developments. In other words, for now, no one who has qualified for deferral of deportation is going to be deported, lose a job or have to leave school, or give up benefits.
Turning then to the legal aspects of the new decision:
The key question was this: in deciding to shut down the program, did the Trump Administration satisfy the procedural requirements of a federal law that controls how federal agencies carry out their duties? That law was the Administrative Procedure Act, which has been on the books since 1946.
That Act, Chief Justice John G. Roberts, Jr., wrote for the majority of five Justices, requires a federal agency that seeks to change an existing policy or program to provide a “reasonable” basis for doing so, in order to allow the courts to review whether the change will be allowed.
The Trump team, Roberts wrote, only sought to justify closing the program on the ground that it was illegal to provide benefits to potentially thousands of undocumented immigrants.
The heart of the program, however, was not eligibility for benefits, according to the Chief Justice, but rather was the eligibility for deferral of deportation, and that was simply not addressed by Administration officials. Moreover, the lead opinion said, those officials did not adequately examine the degree to which tens of thousands of immigrants had relied, for years, on the opportunity to remain in the U.S. and conduct more-or-less normal lives.
(A separate part of the Chief Justice’s opinion found that the immigrants’ lawyers had not proved their claim that ending the DACA program would be an unconstitutional form of discrimination against Hispanic immigrants, who comprise the great majority of those who qualified for the program. That appears to settle that issue for the future, unless the immigrants’ lawyers can come up with new evidence of racial motives in any new attempt to shut down DACA.)
If the Trump Administration does go forward, as the President promised on Friday, with a new attempt to end DACA completely, government lawyers could easily find in both the Roberts opinion and the three dissenting opinions the clues as to the kind of further justification they would need to buttress in court a decision to scuttle DACA.