Is DACA doomed? Supreme Court justices appear to side with Trump

'Regardless of the outcome, Congress still has to do something permanent.'

Immigrant youth and their supporters rallied outside the Supreme Court of the United States on Nov. 12, 2019. Supreme Court Justices heard arguments on the legality of the Obama-era Deferred Action for Childhood Arrivals program, which allows for temporary protection from deportation and permission to work and study in the U.S. for qualified young people. (Photo by Robin Bravender/States Newsroom)
Immigrant youth and their supporters rallied outside the Supreme Court of the United States on Nov. 12, 2019. The court heard arguments on the legality of the Obama-era Deferred Action for Childhood Arrivals program, which allows for temporary protection from deportation and permission to work and study in the U.S. for qualified young people. (Photo by Robin Bravender/States Newsroom)

WASHINGTON — The U.S. Supreme Court appears unlikely to salvage an Obama-era program that has allowed hundreds of thousands of young, unauthorized immigrants known as “Dreamers” to remain in the country without immediate fear of deportation.

Lawyers defending the program — known as Deferred Action for Childhood Arrivals, or DACA — argued Tuesday that the Trump administration broke the law when it rescinded the program in 2017. Hundreds of protestors echoed the sentiment Tuesday, chanting “Home is here!” and other pro-immigrant messages on the streets in front of the high court. 

But the court’s conservatives seemed to disagree. During extended arguments in three consolidated cases, they seemed to endorse the legality of the administration’s decision to end the program and suggested that the question doesn’t even merit judicial scrutiny. 

“I assume that was a very considered decision,” Justice Brett Kavanaugh, President Trump’s most recent appointment to the bench, said of the decision to end it. “Now we can agree with it or disagree with the merits of it … but “what is the shortfall?” 

Even if the decision were illegal, the judicial branch couldn’t necessarily fix it, Chief Justice John Roberts said. “It’s not always the case when the government acts illegally in a way that affects other people that we go back and untangle all of the consequences of that.”

Justice Neil Gorsuch, Trump’s first appointee to the high court, struggled with the issue of “reviewability.” 

“I hear a lot of facts, sympathetic facts … and they speak to all of us,” he said. “But what’s the limiting principle?” 

Temporary protections

The DACA program was created in 2012 to allow certain immigrants who arrived in the United States before age 16 to apply for temporary protection from deportation and work permits. There were roughly 661,000 active participants in the program as of June 30. 

Colorado has nearly 15,000 DACA recipients, according a Center for American Progress analysis of U.S. Census Bureau American Community Survey data. Their average age upon arriving in the U.S. was six years old. The data also found that Colorado’s DACA recipients are parents to 7,000 U.S.-born children.

DACA recipients are often quick to point out that as uncertain as their position is, as temporary as it is with its two-year-renewal periods, the program has been life-changing and, in that, has offered a privilege that millions of others, including family members and friends, do not have.

No one should lose sight of that, Marco Dorado, a DACA recipient since January 2013 told The Independent in a phone call from Washington, where he attended the day’s rally. “We don’t live in a vacuum as DACA recipients,” he said. “At the end of the day, regardless of the outcome, Congress still has to do something permanent. This is a battle [for DACA] we have to fight, but it is not the be-all, end-all.”

Trump vowed on the campaign trail to “end” what he has characterized as an illegal program. His administration made good on his promise in 2017, but lower courts blocked the decision from taking effect.

In June, the U.S. House passed legislation that would safeguard the program and provide a pathway to citizenship for Dreamers. But the bill is languishing in the GOP-controlled Senate, which is unlikely to act on it any time soon.

“We hope and pray that the courts will do the right thing,” House Speaker Nancy Pelosi (D-Calif.) said at a news conference after the arguments. She pointed to the bill passed by the House more than 160 days ago, which she pledged to drop off at the office of Senate Majority Leader Mitch McConnell (R-Ky.). 

On Tuesday morning, Trump tweeted that President Barack Obama had “no legal right” to create the program but said he would make a deal with Democrats to allow DACA recipients to stay if the program is overturned.

Senate Minority Leader Chuck Schumer (D-N.Y.) accused Trump on Tuesday of playing politics with the Dreamers who rely on the program. “The president’s relentless scapegoating of immigrants is the most un-American thing I can think of,” Schumer said. 

Justice Sonia Sotomayor, one of the court’s more liberal jurists, took issue with the administration’s attacks on the program during the arguments Tuesday. She called it legal and said she supports its efforts to defer deportation of Dreamers — more than 90 percent of whom are employed and nearly half of whom are in school, according to a 2017 survey

Such law-abiding immigrants and their families rely on the program, she said. Trump, meanwhile, has said he would protect DACA recipients but he hasn’t — an as-yet empty promise that she said must be considered when ruling on the case. “This is about our choice to destroy lives.”

But Gorsuch and others suggested that the administration has adequately considered such “reliance interests.” 

A ruling in favor of the Trump administration would not necessarily result in the immediate deportation of DACA beneficiaries, according to Steven Schwinn, a law professor at the University of Illinois at Chicago. But it would threaten their ability to live in the United States and would deprive them of legal authorization to work and to access certain social benefits.

Dorado, a Colorado resident who is now studying for his Masters in public administration at the University of Washington, acknowledged the uncertainty and the toll it can take. “I’ve been reflecting on this this last week … We have been fighting so long and have accomplished so much and yet, sometimes it’s as if nothing has changed. We are still here fighting for breadcrumbs.”

But, he said, upon arriving at the Supreme Court Wednesday and seeing hundreds upon hundreds of gathered DACA recipients, he was overwhelmed.

“Being surrounded by people with a common identity was inspiring and empowering and while, yes, the Supreme Court hearing was why we were there, it was so powerful, for me, [that feeling] almost overshadowed what was happening.”

Dorado said he was particularly moved by multi-racial, multi-ethnic group of DACA recipients who came marching to the steps of the Supreme Court beating drums and chanting “Yes, we can” and “Home is here” in multiple languages.

“It just reminded me that DACA transcends national origin,” he said. “And in the context of America, we are anywhere and everywhere.”

The ruling — expected next spring or summer — will also likely inflame partisan divisions over immigration and could influence the outcome of the 2020 presidential contest. A majority of the public backs the DACA program, polls show, though support is stronger among Democrats and Independents than Republicans.

Tina Griego contributed to this report.

Allison Stevens is an independent reporter, writer, editor, and consultant in the Washington, D.C., area. She is a correspondent for The Newsroom's Washington bureau and can be reached at astevens@statesnewsroom.com.

1 COMMENT

  1. So, let me get this straight—-
    Obama can implement policy by executive order, but Trump can not establish his own executive orders (because D’s don’t like it), and
    Obama can demand that all Ambassadors resign so he can appoint the people he wants to represent his foreign policy, but Trump can not recall Yovonovich from the Ukraine because it is not fair ( because she is a nice person). Let’s get real folks. Is this a democracy or a Democratic Dictatorship?

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