Supreme Court Blocks End of DACA

Allen Smith, J.D. By Allen Smith, J.D. June 18, 2020
Supreme Court

The U.S. Supreme Court has ruled that the Deferred Action for Childhood Arrivals (DACA) program should not have been overturned and said the Trump administration's actions to rescind the program violated the Administrative Procedure Act. 

The ruling may give employers more confidence in hiring DACA program participants.

"Even with a job market in flux, our country continues to face a skills gap. As we pivot to reskilling and upskilling the unemployed, it remains a business imperative that we keep in the talent pool all workers educated and trained in the U.S. so that their needed skills can contribute to the American economy," said Emily M. Dickens, Society for Human Resource Management corporate secretary, chief of staff, and head, government affairs. "This U.S. Supreme Court decision to uphold the DACA program helps us meet a critical talent need in our workplaces. We now urge Congress to pass bipartisan solutions that provide critical talent, protect American workers and modernize workplace immigration."

Diane Hernandez, an attorney with Hall Estill in Denver, said health care facilities have trouble filling certain positions, such as registered nurses, even during the pandemic. These facilities want to retain DACA recipients, she said.

DACA recipients, also called "Dreamers," were brought to the United States as children by their parents or other adults who were living in the U.S. illegally, and they have lived most of their lives in the U.S., noted Nandini Nair, an attorney with Greenspoon Marder in Edison, N.J. DACA prevents recipients from being deported and allows them to obtain work-authorization documents that can be renewed every two years and Social Security cards.

Tech companies still are looking for workers, even with COVID-19. Many "Dreamers" are in their 20s and have degrees in science and technology, Nair said. Had the Supreme Court's decision gone the other way, tech companies would have lost many workers, she stated.

Review of 3 Consolidated Cases

The court announced in June 2019 that it would examine three consolidated cases that address whether courts may review President Donald Trump's decision in 2017 to rescind DACA and whether ending the program was lawful.

When Trump announced the change, he said, "In June of 2012, President Obama bypassed Congress to give work permits, Social Security numbers and federal benefits to approximately 800,000 illegal immigrants currently between the ages of 15 and 36. The typical recipients of this executive amnesty, known as DACA, are in their twenties. Legislation offering these same benefits had been introduced in Congress on numerous occasions and rejected each time." 

The state of Texas had led a lawsuit challenging DACA as unlawful but, based on the administration's announcement it would rescind the program, agreed to dismiss it. After lower courts blocked DACA's termination, Texas brought the suit again.

Other courts responded to a challenge brought by the University of California to keep the program from ending. And New York led other states in another challenge of the program's rescission. The courts had found that President Barack Obama had the right to create the program by executive action and that Trump's decision to eliminate it was unlawful.

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Supreme Court Decision

In Department of Homeland Security v. Regents of the University of California, the Supreme Court first determined that the rescission was reviewable by the courts. It then went on to decide that rescission was arbitrary and capricious.

"We do not decide whether DACA or its rescission are sound policies. The wisdom of those decisions is none of our concern," the court stated. "We address only whether the agency complied with the procedural requirement that it provide a reasoned explanation for its action," and the court concluded that the Department of Homeland Security (DHS) had not.

"When an agency changes course, as DHS did here, it must be cognizant that long-standing policies may have engendered serious reliance interests that must be taken into account," the Supreme Court stated.

"DHS may determine, in the particular context before it, that other interests and policy concerns outweigh any reliance interests. Making that difficult decision was the agency's job, but the agency failed to do it," the court said.

Chief Justice John Roberts Jr. wrote the majority opinion, joined by Justices Ruth Bader Ginsburg, Stephen Breyer and Elena Kagan.

Writing separately, Justice Sonia Sotomayor agreed that the rescission of the DACA program was arbitrary and capricious in violation of the Administrative Procedure Act. But she said the court incorrectly foreclosed any challenges to rescission under the equal protection guarantee of the Fifth Amendment's due process clause. She said that determination was "premature at this stage of the litigation."


Dissenting from the court's decision, Justice Clarence Thomas, joined by Justices Samuel Alito Jr. and Neal Gorsuch, said, "To state it plainly, the Trump administration rescinded DACA the same way that the Obama administration created it: unilaterally and through a mere memorandum. Today the majority makes the mystifying determination that this rescission of DACA was unlawful."

Thomas added, "In reaching that conclusion, the majority acts as though it is engaging in the routine application of standard principles of administrative law. On the contrary, this is anything but a standard administrative law case."

He further stated, "Today's decision must be recognized for what it is: an effort to avoid a politically controversial but legally correct decision."

Alito wrote a brief separate dissent, and said, "The federal judiciary, without holding that DACA cannot be rescinded, has prevented that from occurring during an entire presidential term. Our constitutional system is not supposed to work that way."

In his dissent, Justice Brett Kavanaugh said that Congress has not yet enacted legislation to afford legal status to young immigrants who as children were brought to the United States and have lived here ever since.

Effects of Decision

The decision is good news for "Dreamers," but they don't yet have a long-term legal path for being in the U.S. and can't apply for green cards, explained Diamela del Castillo-Payet, an attorney with Shutts & Bowen in Miami.

The opinion leaves open the possibility that the administration could issue a new decision rescinding DACA if it considers certain factors that it ignored the first time, said Jeffrey Davidson, an attorney with Covington & Burling in San Francisco. That move likely would again be challenged. In Davidson's view, "DACA is an enormously beneficial program benefiting hundreds of thousands of people and American society as a whole."

However, Texas Attorney General Ken Paxton said, "We are disappointed with today's Supreme Court decision, but it does not resolve the underlying issue that President Obama's original executive order exceeded his constitutional authority. We look forward to continuing litigating that issue in our case now pending in the southern district of Texas."



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