In Partnership with 74

Supreme Court’s conservative majority appears to back Trump plan to end DACA, potentially putting thousands of students and teachers at risk of deportation

Mark Keierleber | November 12, 2019

Your donation will help us produce journalism like this. Please give today.

Washington, D.C.

Immigration rights activists take part in a rally in front of the US Supreme Court in Washington, DC on November 12, 2019. (Photo by Mandel Ngan/AFP via Getty Images)

The Supreme Court’s conservative majority appeared during oral arguments Tuesday to side with the Trump administration’s efforts to terminate a program that protects some 700,000 undocumented immigrants brought to the U.S. as young children. The case could deal a hard blow to the Deferred Action for Childhood Arrivals (DACA) program and put its recipients at risk of deportation.

But the Court’s liberal justices expressed skepticism, noting that the decision comes with significant ramifications for DACA recipients, their schools and their employers — ramifications, attorneys argued, that had not been sufficiently considered by the government.

“The administration did not want to own” the decision to end DACA and instead pointed to its potential illegality as justification to terminate it, said Theodore Olson, an attorney for DACA recipients. But Solicitor General Noel Francisco rejected that portrayal. “We own this,” he said.

Much of the case centers on whether the Trump administration’s decision to end DACA was arbitrary or grounded in sufficient reasoning. Then-President Barack Obama created DACA in 2012 through executive order, providing some undocumented immigrants with deportation relief and work authorization. When the Trump administration announced a plan to phase out the program in 2017, it seized on court rulings rejecting a similar Obama-era immigration policy to argue that DACA was similarly illegal.

Even the Obama administration didn’t expect the program to stay in effect “in perpetuity,” Francisco said. When Elaine Duke, then-acting secretary of homeland security, issued a memo ending the program, she noted the effects the decision would have on recipients and others, he said.

Duke “is keenly aware that people have ordered their lives in light of the DACA decision, so I think it’s quite clear that she is fully taking into account the whole panoply of reliance interests,” he said, referring to the potential effects of a policy shift on those who rely on the program. But those interests don’t “justify maintaining the policy.”

Justice Ruth Bader Ginsburg challenged that idea, portraying Duke’s memo as “infected” by the notion that courts would likely find DACA illegal. “We don’t know how she would respond if there were a clear recognition that there was nothing illegal about DACA,” she said.

Since 2017, efforts to terminate DACA have been halted by multiple federal courts, including the Ninth Circuit, which upheld a nationwide injunction. That ruling stemmed from several lawsuits, including one filed by the University of California and its president, Janet Napolitano, who previously served as Obama’s secretary of homeland security.

Regardless of the Court’s decision, the partisan debate over Dreamers, as DACA recipients are often called, is unlikely to end anytime soon. The Court’s opinion is expected to drop by next summer as the presidential election picks up steam. But President Donald Trump has already stepped into the fray. In a tweet Tuesday, he said that if the Supreme Court overturns DACA, “a deal will be made with Dems” to allow recipients to stay. In previous negotiations with Congress, Trump used DACA as a bargaining chip to push through his own immigration agenda, including funding for a wall along the U.S.-Mexico border.

In fact, over the years Trump has offered differing takes on DACA recipients. In a 2017 tweet, Trump asked why anybody would want to deport “good, educated and accomplished young people who have jobs, some serving in the military.” In the Tuesday tweet, however, he said program recipients “are far from ‘angels.’ Some are very tough, hardened criminals.” In fact, immigrants with serious criminal records are ineligible for the program.

This isn’t the first time the Supreme Court has weighed the legality of Trump’s immigration policies. In most instances, the Court sided with the president — with one important exception, said attorney Muzaffar Chishti, director of the Migration Policy Institute’s office at the New York University School of Law. In June, the Court rejected the administration’s rationale when it sought to add a citizenship question to the census. In that case, the Court rejected the administration’s stated rationale for including the citizenship question in 2020.

The opinion in that case by Chief Justice John Roberts could foreshadow the Court’s decision on DACA, Chishti said. In siding with the liberal justices in the earlier case, Roberts said the administration’s argument for including the citizenship question “appears to have been contrived.” On Monday, the New York Times reported that as acting homeland security secretary, Duke balked at Trump’s decision to end DACA. Duke ultimately relented and, in a memo, ended DACA based on an assessment by then-Attorney General General Jeff Sessions, who called the program “an open-ended circumvention of immigration laws” and an “unconstitutional exercise of authority by the Executive Branch.”

On Tuesday, Justice Stephen Breyer emphasized the human toll of ending the program. He said a decision to terminate DACA would hurt more than just the recipients themselves, as he counted the large swath of briefs submitted to the Court from groups interested in maintaining the program. Among them, he said, were healthcare organizations, labor unions, 210 educational institutions, six military organizations, and 145 businesses.

On a call with reporters Tuesday afternoon, Napolitano spoke of the profound effect the court’s ruling will have on DACA recipients, including roughly 1,700 students in the UC system. Those who have graduated, she said, are “now serving as nurses, as teachers, as business owners throughout the economy of California.”

In response to a question from The 74, Napolitano said she was encouraged by Breyer’s comments reflecting the impact DACA has had on those beyond the program’s recipients.

“He had literally added up all of the businesses and educational institutions and religious organizations that had filed briefs on behalf of the DACA recipients in this case,” Napolitano said. “He was making the argument that not only do the DACA recipients rely on the DACA policy, but all of these other institutions have relied on them as well.”

But Justice Neil Gorsuch, Trump’s first appointee to the High Court, questioned whether there was more the Trump administration could do to consider the potential effects of the policy reversal and to explain its decision.

“The question is: What more would you have the government say about those reliance interests?” Gorsuch asked. “If it’s a failure of adequacy of explaining, what more is left to be said?”

This article was published in partnership with The 74. Sign up for The 74’s newsletter here.

Read Next