Supreme Court case of Trump vs. ‘Dreamers’ may come down to Chief Justice Roberts

WASHINGTON – A somewhat reluctant Supreme Court will hear arguments Tuesday in this year’s most far-reaching immigration case and decide whether President Donald Trump was justified in seeking to revoke a popular Obama-era policy that allowed more than 700,000 immigrants brought to the country illegally as children to temporarily live and work in this country.

Given the conservative majority on the court, the so-called Dreamers’ best hope for victory almost surely depends on Chief Justice John G. Roberts Jr.

Though Roberts has repeatedly ruled that the president enjoys broad powers when it comes to immigration, he is also one of the few remaining conservative justices who has shown a willingness to side with liberals on high-profile cases, including one recently in which he agreed that the Trump administration had not adequately defended its actions – the same issue in play in the Dreamers case.

Roberts is a conservative with four other Republican appointees on his right, including Justices Neil M. Gorsuch and Brett M. Kavanaugh, Trump’s two appointees. He wrote the 5-4 ruling last year upholding Trump’s travel ban and said then the immigration laws entrust enforcement to the chief executive.

In what may be a preview to how they view the Dreamers case, Roberts and the court’s conservatives in 2016 blocked a similar but more sweeping Obama order, which would have protected as many as 4 million people who were living illegally in the country.

And in recent months, the chief justice played a key role in two other immigration victories for Trump. In late July, a 5-4 majority including Roberts overturned a federal judge in Oakland, Calif., and cleared the way for Trump to shift $2.5 billion of military construction funds to pay for a border wall. In September, the court overturned a federal judge from San Francisco and let Trump enforce a new ban on asylum claims at the southern border from migrants who did not seek asylum in Mexico.

Those two cases were decided as emergency orders and without a full opinion. They reflect what has become the familiar pattern since Trump took office. The American Civil Liberties Union and Democratic

state attorneys have rushed to federal courts in California and New York and won a series of quick rulings that put Trump’s initiatives on hold. When the cases reached the Supreme Court, Trump and his lawyers have often prevailed.

But Roberts is emerging as one of the court’s most unpredictable votes, most famously siding with liberals twice to uphold the Affordable Care Act, also known as “Obamacare.”

Conservatives were equally disappointed in June when Roberts joined with the court’s four liberals to block the Trump administration from adding a citizenship question to the 2020 census. The chief justice agreed the law gave Commerce Secretary Wilbur Ross authority over the census, but he concluded nonetheless that the secretary had violated the Administrative Procedure Act by giving a “contrived” and “pretextual” reason for adding the new question. Hardly anyone believed Ross’ claim that he was seeking to better enforce the Voting Rights Act. Critics said it was designed to reduce census participation among Latinos.

That ruling, though highly procedural, has given hope to lawyers for the Dreamers. They include Ted Olson, a Republican and the U.S. solicitor general under President George W. Bush. He argued that when Trump terminated the Deferred Action for Childhood Arrivals, or DACA, program in 2017, he did not give a valid explanation to justify the move. Federal judges in San Francisco, New York and Washington, D.C., agreed. They said Trump’s repeal rested on the false claim that Obama’s order was illegal from the start.

“The executive can change course on enforcement policies, but not in arbitrary and unreasoned ways,” he wrote. His brief argued that presidents for 70 years had used “parole” or “deferred action” to shield large groups of immigrants and refugees, including Hungarians in the 1950s, Cubans in the 1960s and Vietnamese and Cambodians in the 1970s. “DACA is lawful. The administration could have left (it) in place. It did not have to end this humanitarian policy that allows nearly 700,000 people to stay in the only country they have ever really known,” he said.

In November 2018, the 9th Circuit Court of Appeals upheld a district judge’s order that had blocked Trump’s repeal.

Abaca Press/tns Chief Justice of the United States John G. Roberts during a group photograph at the Supreme Court building on June 1, 2017, in Washington, D.C.