In a major rebuke to President Donald Trump, the US Supreme Court has blocked the Trump administration’s plan to dismantle a program implemented by President Barack Obama in 2012 that has protected 700,000 so-called DREAMers from deportation. The vote was 5-4, with Chief Justice John Roberts writing the opinion. Under the Obama-era program, qualified individuals brought to the US as children were given temporary legal status if they graduated from high school or were honorably discharged from the military, and if they passed a background check. Just months after taking office, President Trump moved to revoke the program, only to be blocked by lower courts, and now the Supreme Court. Roberts’ opinion for the court was a narrow but powerful rejection of the way the Trump administration went about trying to abolish the program known as Deferred Action for Childhood Arrivals, or DACA. “We do not decide whether DACA or its rescission are sound policies,” Roberts wrote. “The wisdom of those decisions is none of our concern. Here we address only whether the Administration complied with the procedural requirements in the law that insist on ‘a reasoned explanation for its action.’ “
In 2017, then-Attorney General Jeff Sessions simply declared DACA illegal and unconstitutional. “Such an open-ended circumvention of immigration laws was an unconstitutional exercise of authority by the executive branch,” he said at the time. Sessions argued that the program should be rescinded because he said it was unlawful from the start. But, as Chief Justice John Roberts observed, the Attorney General offered no detailed justifications for canceling DACA. Nor did the acting secretary of Homeland Security at the time, Elaine Duke, who put out a memo announcing the rescission of DACA that relied entirely on Sessions’ opinion that the program was unlawful. As Roberts noted, Duke’s memo did not address the fact that thousands of young people had come to rely on the program, emerging from the shadows to enroll in degree programs, embark on careers, start businesses, buy homes and even marry and have 200,000 children of their own who are US citizens, not to mention that DACA recipients pay $60 billion in taxes each year. None of these concerns are “dispositive,” Roberts said, but they have to be addressed. The fact that they were not addressed made the decision to rescind DACA “arbitrary and capricious,” he wrote. And none of the justifications the administration offered after the fact sufficed either, including a memo issued by then-Secretary of Homeland Security Kirstjen Nielsen. That memo, said Roberts, was essentially too little, too late. An agency must defend its action based on the reasons it gave at the time it acted, he said, instead of when the case is already in court.
Chief Justice John Roberts also made clear that an administration can rescind a program like DACA, and indeed immigration experts do not disagree with that conclusion. The problem for the administration was that it never wanted to take responsibility for abolishing DACA and instead sought to blame the Obama administration for what it called an “illegal and unconstitutional” program. The Chief Justice did not address that issue. Instead, says immigration law professor Lucas Guttentag, the justices in the majority seemed to be saying, “Why should the court be the bad guy” when the administration “won’t take responsibility” for rescinding DACA by explaining clearly what the policy justifications for the revocation are? Joining the Roberts opinion were the court’s four liberal justices, Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor, and Elena Kagan. Sotomayor wrote separately in a concurrence to say that while she agreed that rescinding DACA violated the law for the procedural reasons outlined by the Chief Justice, she would have allowed the litigants to return to the lower courts and make the case that rescinding DACA also amounted to unconstitutional discrimination. Justice Clarence Thomas wrote the principal dissent, accusing Roberts of writing a political rather than a legal opinion. Joining him were Justices Neil Gorsuch and Samuel Alito, with separate dissents also filed by Alito and Justice Brett Kavanaugh.
In a Twitter post, President Donald Trump blasted the decision as one of the “horrible & politically charged decisions coming out of the Supreme Court.” President Trump also asked the question of if “Do you get the impression that the Supreme Court doesn’t like me?” Former Vice President Joe Biden, the presumptive Democratic nominee, on the other hand, celebrated the decision, saying in a statement, “The Supreme Court’s ruling today is a victory made possible by the courage and resilience of hundreds of thousands of DACA recipients who bravely stood up and refused to be ignored.” In an interview with NPR, Ken Cuccinelli, the Trump administration senior official who oversees immigration and citizenship at the Department of Homeland Security, said President Trump is considering his options. “I do expect you will see some action out of the administration,” he said, adding: “He is not a man who sits on his hands.”
While the decision gives DACA and its hundreds of thousands of recipients a lifeline, the issue is far from settled. The court decided that the way President Donald Trump went about canceling DACA was illegal, but all the justices seemed to agree that the president does have the authority to cancel the program if done properly. As for the immediate future of DACA, the consensus among immigration experts is that there is not enough time for President Donald Trump to try again to abolish the program before January. Cornell Law School professor Stephen Yale-Loehr, the author of a 21-volume treatise on immigration law, says, “It’s not remotely possible before the election. But if [Trump] is reelected, he almost certainly will try again” to cancel DACA. For now, though, more individuals eligible for DACA status may be able to apply. Marisol Orihuela, co-director of the Worker & Immigrant Rights Advocacy Clinic at Yale Law School, notes that the administration has refused to accept new applications since 2017. But she thinks that will change now. “Our understanding is that the program is restored to what it was in 2012 when it went into effect,” she says. Guttentag, who teaches immigration law at Yale and Stanford University, says if President Trump is not reelected, a new administration could repair “much of the damage” that he says has been inflicted on immigrants during the Trump administration. But, he adds that the immigration system is “completely shattered” and needs “fundamental reform.”