The Supreme Court heard oral arguments Tuesday in three cases challenging the Trump administration’s move to end the Deferred Action for Childhood Arrivals, or DACA, program. The program, established by President Obama in 2012, provides work authorization as well as protection against deportation to about 700,000 undocumented immigrants who were brought to the U.S. as children, including many college students.
Court watchers differed in their assessment of the arguments. Amy Howe, writing for SCOTUSblog, wrote that “it wasn’t clear how the case is likely to turn out. Several justices appeared concerned that the Trump administration’s decision-making process had not adequately considered the effects of rescinding DACA, but on the other hand they weren’t necessarily convinced that sending the case back for a do-over would actually make much of a difference.”
The court reporter for The New York Times, Adam Liptak, concluded that the court’s five-member conservative block seem poised to accept the Trump administration’s case for ending DACA. The Washington Post’s court reporter, Robert Barnes, wrote, “In general, the court’s liberals seemed highly skeptical of the administration’s actions, while the conservatives seemed open to the idea that it had the power to terminate the program.”
Trump announced plans to wind down the DACA program in September 2017, arguing that the program was unlawful and represented an unconstitutional “end run” around Congress.
However, three different federal courts blocked the Trump administration from ending the DACA program, variously finding that its claim that the program was unlawful was either erroneous or inadequately explained. The lower courts held that the administration’s decision to end DACA was therefore arbitrary and capricious, in violation of the requirements of the Administrative Procedure Act.
Much of Tuesday’s hearing focused on the procedural question of whether the decision to end DACA was reviewable by the courts, with the government arguing that it wasn’t.
The government further argued that it reasonably concluded that DACA was unlawful, citing in support of its rationale a 2017 decision by the U.S. Court of Appeals for the Fifth Circuit -- affirmed by an evenly divided eight-member Supreme Court -- striking down a related program known as DAPA and a proposed expansion of DACA.
“In the face of those decisions, the Department of Homeland Security reasonably determined that it no longer wished to retain the DACA policy based on its belief that the policy was illegal, its serious doubts about its illegality and its general opposition to broad nonenforcement policies,” the solicitor general, Noel. G. Francisco, argued on behalf of the government.
A lawyer for the challengers, Theodore B. Olson, framed DACA as an exercise of the Department of Homeland Security's congressionally mandated discretion in setting enforcement priorities.
Olson argued it was impermissible for the government to end the program "based on an unexplained, unsupported and erroneous legal conclusion that the policy that two administrations had enforced and implemented, had supported and implemented for five years, was unlawful and unconstitutional."
Perhaps the sharpest moment in the hearing came when Sonia Sotomayor, a member of the court's liberal wing, questioned the government's legal arguments and asked where the government had articulated clearly what she characterized as a political decision. "That this is not about the law; this is about our choice to destroy lives," she said.
Higher education groups have joined the fight to keep DACA in place. The University of California system and Princeton University are among the plaintiffs in the three cases that were jointly argued before the Supreme Court Tuesday.
“One thing that I hope doesn't get lost in this case is the profound impact that the court’s ruling will have on 700,000 some-odd DACA recipients, some 1,700 of which are in the University of California," UC president Janet Napolitano said in a news conference. Napolitano was President Obama's secretary of homeland security at the time DACA was enacted.
"These are young people who have done all that has been asked of them," Napolitano said. "They have earned admission to the University of California. They are in our undergraduate student population, some are in our medical schools and our law schools, some have graduated and are now serving as nurses, as teachers, as business owners throughout the economy of California. To remove their DACA protection in the way that the Trump administration has attempted to do and to make them subject to eviction from the only country they know as home is not only not legally required, but it is inconsistent with good immigration policy and inconsistent with our values as a country."
The American Council on Education and 43 other higher education associations filed an amicus brief supporting continuation of the program, which the groups argue led to a dramatic expansion in college enrollment for DACA recipients. After the program’s enactment, DACA recipients found themselves able to legally work, access in-state tuition rates in some states, take out private loans, obtain driver’s licenses and gain professional licensure in their fields of choice.
“Rescinding DACA would also upset the lives of tens of thousands of DACA recipients who have relied on this program,” the groups wrote. “DACA recipients reordered their lives with the legitimate expectation that they would be able to live and work in this country legally. These young people came out of the shadows, enrolled in school, took out private student loans, worked hard to earn advanced degrees, started jobs, started families, and made countless other life decisions of tremendous import, all in reliance on DACA. The rescission would subvert all of that.”
Trump himself has struck very different tones on DACA at various points in his presidency.
In February 2017 -- seven months before his administration announced plans to rescind the program -- he described DACA “as one of the most difficult subjects I have. Because you have these incredible kids, in many cases, not in all cases. In some of the cases they’re having DACA and they’re gang members and they’re drug dealers, too. But you have some absolutely incredible kids, I would say mostly, they were brought here in such a way -- it’s a very, very tough subject. We are going to deal with DACA with heart.”
On Tuesday Trump struck a less sympathetic tone on Twitter, while still indicating he was interested in negotiating a deal with Democrats in Congress for the DACA beneficiaries: “Many of the people in DACA, no longer very young, are far from ‘angels,’” he wrote. “Some are very tough, hardened criminals. President Obama said he had no legal right to sign order, but would anyway. If Supreme Court remedies with overturn, a deal will be made with Dems for them to stay!”
Despite what the president said on Twitter, the DACA program excludes individuals with serious criminal backgrounds. In order to be eligible for DACA, individuals may not have been convicted of a felony, a significant misdemeanor or three or more other misdemeanors. DACA recipients must either be in school or have earned a high school diploma or General Educational Development certificate, or have been honorably discharged from the Coast Guard or U.S. armed forces.