The Supreme Court dealt a blow to the Trump administration’s immigration policy today, ruling 5-4 that the administration illegally canceled the Obama-era program Deferred Action for Childhood Arrivals. The decision cleared the way for nearly 700,000 individuals brought to the United States as children—known as Dreamers—to stay in the country, at least for now.
The Court made its decision not on the basis of whether the Trump administration had the right to cancel DACA in September 2017, but whether it went about it properly. The answer was no. Chief Justice John G. Roberts Jr., writing the majority opinion and joined by the court’s four liberal judges, said the former Acting Secretary of Homeland Security Elaine Duke had violated the Administrative Procedure Act by rescinding DACA in a way that was both “arbitrary and capricious.”
“The agency failed to consider the conspicuous issues of whether to retain forbearance and what if anything to do about the hardship to DACA recipients,” Justice Roberts wrote. “That dual failure raises doubts about whether the agency appreciated the scope of its discretion or exercised that discretion in a reasonable manner.”
The complicated decision, however, does allow for the Department of Homeland Security to revisit DACA anew, and provide better justification for canceling the program.
Dreamers around the country erupted in joy after the Court’s decision handed them a victory they had longed for, but had truly not expected.
“I am just speechless,” said Carlos Vargas, 34, a law student from Staten Island, who was one of the plaintiffs in the New York case, Batalla Vidal v. Nielsen. “It means that I can continue living my life without the fear of deportation. I can continue my law school education. I can continue living without fearing ICE will come knocking at the door. It’s very exciting.”
He came to the country at age 4 from Mexico with his family, including his brother, Cesar Vargas, who was one of the first undocumented lawyers in New York State.
Justice Clarence Thomas, writing in a dissent, said that he believed that DACA “was unlawful from its inception.” He called the majority opinion a “stopgap measure” and wrote: “Today’s decision must be recognized for what it is: an effort to avoid a politically controversial but legally correct decision. The Court could have made clear that the solution respondents seek must come from the Legislative Branch.”
Recipients of DACA have been able to renew their applications since September 2017, but no new applications have been accepted. The Court’s ruling does not address that, but it remanded the decision to the lower courts. “Even if the lower courts wanted to issue an order saying that new applications could be accepted, that would take some time,” said Cornell Law School professor Stephen Yale-Loehr.
The Deferred Action for Childhood Arrivals program was created by President Barack Obama’s executive action in June 2012 to protect undocumented immigrants who were brought as children to the country by their parents. They had to satisfy certain conditions, including entering before age 16 and not being older than 31 when first applying, living in the United States for at least five years, being in school or completing a high school education, and having never committed serious crimes. In return, these young people could get work permits for two years and a driver’s license—but no path to citizenship.
Some, like the Vargases, crossed the Mexican border as toddlers holding their mothers’ hands. Others flew to the country legally on a visa and their families overstayed. Now they are doctors, lawyers, nurses, teachers, entrepreneurs, dry cleaners, parents, and students. Recipients in turn supported their families, creating a cascading network of economic benefits for companies and communities.
Among the recipients are an estimated 29,000 healthcare workers on the front line of the coronavirus pandemic. The Supreme Court had agreed to accept a supplemental brief submitted in March on behalf of these workers, warning that termination would be “catastrophic.”
Trump campaigned on the promise to end DACA, but he has vacillated in the last five years over the plight of Dreamers, calling them sympathetic and urging Congress to make a deal. It could not, continuing the futility of lawmakers since 2001 to enact a law ensuring a path to citizenship.
On the day of the Supreme Court’s oral arguments of the DACA case in November, Trump tweeted that Dreamers were “far from ‘angels.’ Some are very tough, hardened criminals.” That tweet was inaccurate, since anyone convicted of a felony, a significant misdemeanor or three misdemeanors would not be eligible for DACA.
Unlike other divisive issues of immigration, DACA has had more broad support, according to several polls conducted over the last three years. A poll in early May conducted by the Moore Information Group for the immigrant activist group FWD.us showed that a majority of Americans—66 percent—supported DACA.
“The American public, Republicans, Democrats, and independents, have supported DACA and have supported the Dreamers ever since we have waged this fight,” said Juan Escalante, 31, the digital campaigns manager at FWD.us, and a DACA recipient from Venezuela who has been a lead activist for two decades. “The highest court in the land has told Donald Trump not to mess with DACA and not to mess with Dreamers and they should take that immediately and back off any attack.”
For nearly three years, DACA recipients have lived in limbo, worried not just about their work permits and their studies, but also whether they could be deported back to a country they had never really known. During the oral arguments in November, Roberts seemed to support the administration’s right to terminate the program, but also expressed sympathy for the Dreamers. Roberts said then that the Trump administration indicated it would not deport recipients.
But the administration’s immigration agencies seem to have a differing view. The acting director of ICE, Matthew Albence, explicitly said in January that if the Supreme Court eliminated DACA, the agency could deport any recipient who had an order of removal.
In the dual throes of a pandemic and an election year, Dreamers found affirmation from the highest court in a decision that focused on a precise legal question.
Escalante said Trump and his then attorney general, Jeff Sessions, “tried to rush the termination of this program so they could push more anti-immigrant pieces of legislation.”
He added: “Because they rushed, they tripped over themselves. Here we are, at the end of the tunnel on an election year, and the Trump administration needs to take it as it is. They lost and they cannot and should not go back and rectify it. They need to let this stand.”