Supreme Court to hear DACA case today
Oral arguments to begin on whether Trump had power to end program for young migrants
Diana Platas feels like everything in her life is at stake, riding on a politically charged debate about to play out more than 1,200 miles away.
The 22-year-old is studying to get into law school and dreams of becoming an immigration attorney. But she doesn’t know whether a year from now she’ll be able to work or face deportation to Mexico, a country she hasn’t lived in since her parents brought her here illegally when she was 2.
In 2012, an Obama-era initiative known as Deferred Action for Childhood Arrivals, or DACA, gave certain young immigrants such as Platas a work permit and temporary protection from deportation. Then President Donald Trump announced he was ending that program in 2017. His order was immediately challenged, and two years later, the Supreme Court will hear oral arguments Tuesday on whether his administration had the authority to end the program.
“I really don’t know what’s going to happen,” Platas said. “If DACA gets taken away, that basically destroys everything I’ve planned for myself and for my family.”
The case, one of the most important of the justices’ term, will help define the scope of presidential powers over immigration. It also is seen as a test of Chief Justice John Roberts, who has lamented the politicization of the court and appeared reluctant to take on the DACA case, waiting until the last moment to do so.
A majority of justices have consistently agreed that Trump has expansive latitude on immigration, green-lighting his travel ban preventing citizens of several Muslim-majority countries from entering the United States and declining to halt a policy ending asylum at the southern border. But in a 5-4 majority opinion, Roberts recently blocked the administration from adding a citizenship question to the 2020 census — seen by some as an attempt to suppress the participation of immigrant-heavy communities — by arguing that it had done so improperly, which is also at issue in the government’s termination of DACA.
Whatever the justices decide will have tremendous impact on the lives of more than 700,000 young people known as “Dreamers” who are enrolled in the program, including about 109,000 in Texas. To qualify, they had to fulfill several requirements, such as proving they came here before they turned 16, graduated from high school or had served in the military, and had committed no serious crimes. The renewable twoyear status does not provide a path to citizenship.
“Should the court rule against the DACA plaintiffs, they’ll be in utter limbo,” said former Homeland Security Secretary Janet Napolitano, who created the DACA program in 2012. “They will be fearful of being subject to deportation, they’ll lose ultimately their ability to work and pay taxes, et cetera the way they do now — and in a way, you know, they lose hope as to whether they can remain in this country, which is their home.”
A ruling is expected next summer, just months before the 2020 presidential elections, in which immigration is certain to again be a contentious issue.
The administration argues that it had no choice but to end the program because it was unlawful.
Dreamers are seen sympathetically by both Republicans and Democrats, who tend to agree that children should not be punished for their parents bringing them here illegally. But the DACA program is also viewed as an illegal amnesty by antiimmigration groups, which are a core part of Trump’s base.
“I do not favor punishing children,” Trump wrote in his announcement ending the program before adding, “The program is unlawful and unconstitutional and cannot be successfully defended in court.”
He later repeated on Twitter: “Does anybody really want to throw out good, educated and accomplished young people who have jobs, some serving in the military?”
Now the president’s own words and the administration’s stated motivation to end the program might undermine the government’s argument before the court. The questions before the justices are whether it has jurisdiction over the executive branch’s decision to end the initiative and if the termination of DACA was lawful.
The government contends it has complete discretion over immigration and can end the program if it wants to. But by having already argued it was obligated to terminate DACA because the program is illegal, that implies a matter for the courts.
“They are getting caught in the president’s rhetoric,” said Muzaffar Chishti, director of the New York University office for the Migration Policy Institute, a bipartisan think tank.
In arguing DACA is unlawful, the White House relied on a related lawsuit the state of Texas brought against an attempt by Obama’s administration to extend similar protections to the parents of American children who lack lawful status.
Texas argued that the program, known as Deferred Action for Parents of Americans, or DAPA, was an executive overreach and that the state would be harmed by the cost of having to provide driver’s licenses to such immigrants. The Obama administration contended the program was legal because it relied on well-established governmental authority to use discretion in deciding which immigrants to deport.
In 2016, a shorthanded Supreme Court deadlocked 4-4 on the issue, leaving in place a ruling from the Court of Appeals for the 5th Circuit in New Orleans that had blocked the program. The Trump administration argued that made it likely DACA would also be considered illegal.
Last year, however, the same federal judge who initially halted the DAPA program delivered an unexpected victory to immigrant groups on DACA. Judge Andrew Hanen of the federal district court in Houston declined Texas’ 2018 request to block DACA and declare the initiative unlawful. He said it had been relied upon by hundreds of thousands of immigrants since it was created in 2012 and should not abruptly be terminated.
“Here, the egg has been scrambled,” Hanen wrote in his ruling. “To try to put it back in the shell with only a preliminary injunction record, and perhaps at great risk to many, does not make sense nor serve the best interests of this country.”
Courts across the nation have similarly held that DAPA and DACA differ in fundamental ways, further weakening the administration’s argument.
“DAPA was a hypothetical program. It hadn’t happened,” said Chishti of the Migration Policy Institute. “DACA is a live and kicking animal and with 700,000 lives at stake. You can’t say these are comparable things.”
Thomas Saenz, president of the Mexican American Legal Defense Fund, an advocacy group representing DACA recipients in Texas’ litigation, said that the Trump administration choosing to wait nine months before ending a program it argues is illegal raises questions about why it didn’t terminate the initiative immediately. He noted that Texas also did not challenge the original DACA program as part of its DAPA lawsuit in 2016 but waited years before suing to stop it in 2018.
“It strains credulity” as to their motivation to end the program, Saenz said.
Justices also have to consider whether how the government terminated DACA was lawful or if it violated the Administrative Procedure Act, a federal statute that governs the way the government can establish and implement new regulations.
Some legal experts see a precedent for Roberts in the census case, in which the chief justice found that the Commerce Department’s justification for needing citizenship information to help the Justice Department enforce the Voting Rights Act seemed “contrived.”
“Agencies must pursue their goals reasonably,” he wrote in his majority opinion. “Reasoned decision making under the Administrative Procedure Act calls for an explanation for agency action.”
Stephen Yale-Loehr, an immigration law professor at Cornell University Law School, said he predicted a 5-4 decision with Roberts as the swing vote.
“The Supreme Court has traditionally given the president wide latitude on immigration policy decisions,” he said. “But they could try to avoid the thorny constitutional issues by ruling on narrower statutory grounds” such as what occurred in the census case.
If the court allows the program to continue, that once again gives Congress an excuse not to act on immigration, whereas upholding DACA’s termination would place tremendous pressure on lawmakers, or face the potential mass deportation of young immigrants who have lived here most of their lives.
For Platas, who graduated from the University of Houston-Downtown in 2018, the uncertainty is a constant source of stress.
“I honestly don’t have a Plan B,” she said.
The president’s decision to renounce DACA came just two weeks after her family’s house flooded during Tropical Storm Harvey. She was bouncing between the homes of relatives while juggling a heavy course load with a part-time job.
“Everything just came over me all at once,” she said, describing how she broke down in tears in her car after the announcement. “I’d already had the whole Harvey thing happen, not having a home, now not having DACA.”
She wishes she could speak to the president and try to convince him of their similarities.
“We were raised here, we speak the same language, my loyalty is to the United States,” Platas said. “We are people striving to make this place better and people who have aspirations of getting careers and making America great again, like his slogan says.”