Can the Supreme Court Overturn the Decision to End DACA?

Allen Smith, J.D. By Allen Smith, J.D. November 12, 2019
Can the Supreme Court Overturn the Decision to End DACA?

​The Trump administration's decision to wind down the Deferred Action for Childhood Arrivals (DACA) program, which protects young undocumented immigrants from deportation and allows them to obtain valid work permits, can't be reviewed by courts, a Justice Department attorney argued before the Supreme Court Nov. 12.

Attorneys challenging the termination of the program disagreed, saying courts could scrutinize the program's ending and that the administration unlawfully failed to account for the thousands of DACA program participants, so-called "Dreamers," who depend on the program. Educational institutions and employers also depend greatly on the program and the students and workers who are Dreamers.

The court announced in June that it would examine three consolidated cases that involve the questions of whether courts may review the decision to rescind DACA and whether ending the program was lawful.

President Barack Obama's administration launched the DACA program in 2012. The Trump administration sought to wind down the program in 2017. 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 courts blocked DACA's termination, Texas brought the suit again.

The courts had responded to a challenge brought by the University of California to keep the program from ending. New York led other states in another challenge of the program's rescission. The courts had found that Obama had the right to create the program by executive action and that Trump's decision to eliminate it was likely "arbitrary, capricious or otherwise not in accordance with law."

But Texas asserted in a friend-of-the-court brief that DACA "inflicts ongoing irreparable harm on the states" because they have to "bear the costs of providing … social services required by federal law, including health care, education and law enforcement."  

"The main argument of the Regents of California and all the parties that have challenged the winding down of DACA is that the Trump administration used an impermissible reason to wind it down," said Susan Cohen, an attorney with Mintz in Boston. "The Trump administration's stated basis for winding it down was that the DACA program was unlawful. Many presidents before President Obama had authorized the immigration agency to defer removals of large groups of people here illegally, for a number of different policy reasons. So, there was ample precedent for the Obama administration to do so with DACA."

If Dreamers no longer could work, employers would experience significant turnover. "There may be limited employment visa sponsorship possibilities but they would be risky and not possible in many cases," said Yova Borovska, an attorney with Buchanan Ingersoll & Rooney in Tampa, Fla.

[SHRM members-only toolkit: Understanding and Obtaining U.S. Employment Visas]

Government's 'Unreviewable Discretion'

Arguing for the Trump administration, General Noel Francisco, solicitor general with the U.S. Department of Justice in Washington, D.C., said the decision to end DACA did not violate the Administrative Procedure Act. The decision is not subject to judicial review, he emphasized.

He said the decision whether or not to enforce immigration law was "committed to the agency's unreviewable discretion, unless a statute restricts it. And nothing in the INA [Immigration and Nationality Act] requires the department, a law enforcement agency, to not enforce the law" as the DACA program does now, in not deporting children brought to the U.S. illegally.

In addition, the decision to end the nonenforcement policy was reasonable. He described DACA as a "stopgap measure that … could be rescinded at any time. And the department's reasonable concerns about its legality and its general opposition to broad nonenforcement policies provided more than a reasonable basis for ending it."

Justice Ruth Bader Ginsburg said, "There's a strange element to your argument because you're arguing … it's not reviewable because it's committed to agency discretion. But, on the other hand, you say the agency had no discretion because this program was illegal. … How can it be committed to your discretion, when you're saying we have no discretion; this is an illegal program?"

Francisco responded, "We've put forward both legal and policy reasons for the rescission."

Reliance of DACA Recipients

Justice Neil Gorsuch asked if the government had adequately considered the impact that ending DACA would have on Dreamers who had expected the program to remain in place.

Francisco answered that DACA was always meant to be temporary. "So, I don't think anybody could have reasonably assumed that DACA was going to remain in effect in perpetuity."

"I have always had some difficulty in understanding the illegality of DACA," said Justice Sonia Sotomayor. "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?"

She added, "This is not about the law; this is about our choice to destroy lives."

Francisco expressed "general opposition to broad-based nonenforcement policies."  

'Presumption of Reviewability'

Arguing in favor of continuing DACA, Theodore Olson, an attorney with Gibson Dunn in Washington, D.C., said that when a decision affects the lives of hundreds of thousands of people who rely on the program for their livelihood, there is a presumption of reviewability.

The administration should "take responsibility for throwing these people out of work, removing people that came here when they were maybe two years old, who have not committed a crime and who have volunteered for this program [and] have conducted themselves properly," he said. The federal government should have to provide a "rational explanation" for its rescission of the program, he added.

Michael Mongan, solicitor general with the California Department of Justice in San Francisco, said the Trump administration had to defend its decision based on the legal rationale offered. Courts had reviewed the decision and the reason for it could not be sustained, he said.

The rationale fails to take serious account of the dramatic costs to DACA recipients, their families, their employers and the economy to terminating DACA, he added. Moreover, he said that DACA is lawful.



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