Law & Courts

Justices Weigh DACA as Students, Educators Join Throngs Outside Court

By Mark Walsh — November 12, 2019 4 min read
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The U.S. Supreme Court on Tuesday took up the Trump administration’s decision to unwind deportation relief for nearly 700,000 undocumented immigrants who came to the United States as children, with challengers appearing to face an uphill battle to convince a majority of justices that the decision violated administrative law principles.

The case includes a teachers’ union and the University of California system as parties, and other education groups have filed friend-of-the-court briefs in support of participants in Deferred Action for Childhood Arrivals, the program launched by President Barack Obama in 2012 but which President Donald Trump’s administration has sought to rescind since 2017.

Teachers and students who are DACA recipients were among thousands of people who demonstrated on the street and sidewalk in front of the court as the justice’s hear arguments in Department of Homeland Security v. Regents of the University of California (Case No. 18-587).

Several conservative justices appeared willing to accept a memorandum put forth by then-Secretary of Homeland Security Kirstjen M. Nielsen that explained the DACA recission on legal and policy grounds. The memo was a followup to an earlier memo, by then-Acting DHS Secretary Elaine C. Duke, that had cited only a view that the DACA program was likely unlawful based on legal rulings regarding a related program, Deferred Action for Parents of Americans (DAPA).

Several lower courts had rejected the Duke memorandum as being “arbitrary and capricious” under the Administrative Procedure Act, and federal courts in Washington found the Nielsen memorandum, as one court put it, an attempt “to disguise an objection to DACA’s legality as a policy justification for its rescission.”

Chief Justice John G. Roberts Jr. wondered why a lower court decision striking down the separate DAPA program, which the Supreme Court affirmed 4-4 in 2016 without an opinion, was not a sufficient basis for the Trump administration’s decision to rescind DACA.

Justice Brett M. Kavanaugh appeared dubious that the Nielsen memo had the shortfalls alleged by challengers.

“This is a serious decision; we all agree with that,” Kavanaugh said. “And it was for the secretary, presumably. And to say in writing ‘even if it’s lawful, I nonetheless am going to exercise my discretion,’ I assume that was a very considered decision.”

Justice Neil M. Gorsuch wondered “what good would another five years of litigation over the adequacy of that explanation serve” when challengers concede that the Trump administration may exercise its discretion to end DACA if it is done properly.

Theodore B. Olson, a former U.S. solicitor general under President George W. Bush who was arguing on behalf of the challengers, said the “government’s termination of DACA triggered abrupt, tangible, adverse consequences and substantial disruptions in the lives of 700,000 individuals, their families, employers, communities, and Armed Forces. That decision required the government to provide an accurate, reasoned, rational, and 23 legally sound explanation. It utterly failed to do so.”

Several of the more liberal justices expressed views that DACA was never unlawful to begin with or that the Trump administration had not properly rescinded it.

Justice Stephen G. Breyer said there were “reliance interests"—decisions made in reliance on a particular policy—not only for DACA recipients but also by many others. He cited friend-of-the-court briefs filed by employers, labor unions, education associations, and others in support of the program.

Justice Sonia Sotomayor said he had a hard time viewing DACA as unlawful.

“I’ve always had some difficulty in understanding what’s wrong with an agency saying, we’re going to prioritize our removals, and for those people, like the DACA people, who haven’t committed crimes, who are lawfully employed, who are paying taxes, who pose no threat to our security, and there’s a whole list of prerequisites, we’re not going to exercise our limited resources to get rid of them,” she said.

Sotomayor, referring to President Trump but not using his name, said “there were reliance interests that weren’t looked at, including the ... current president telling DACA-eligible people that they were safe under him and that he would find a way to keep them here. And so he hasn’t and, instead, he’s done this. And that, I think, has something to be considered before you rescind a policy.”

U.S. Solicitor General Noel J. Francisco responded that “the prior president [Obama] didn’t, couldn’t, and hasn’t made any kind of promise that DACA would remain in effect in perpetuity because it would have been impossible to make that promise.”

“The decision to end this non-enforcement policy was eminently reasonable,” Francisco said. “DACA was a temporary stopgap measure that, on its face, could be rescinded at any time.”

A decision in the case is expected by late June.

Image: People rally outside the U.S. Supreme Court on Nov. 12 as the court heard arguments in a case involving a decision by President Donald Trump’s administration to end the Obama-era, Deferred Action for Childhood Arrivals program (DACA). (AP Photo/Jacquelyn Martin)

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A version of this news article first appeared in The School Law Blog.