ON NOVEMBER 12th the Supreme Court will consider whether President Donald Trump may scrap DACA, or Deferred Action for Childhood Arrivals, a programme Barack Obama implemented by executive order in 2012. DACA was necessary, Mr Obama said upon its introduction, “to mend our nation’s immigration policy”. Over the next few years some 800,000 “Dreamers” who arrived in America as children were granted work permits and temporary relief from the threat of deportation. But in 2017 the Trump administration said it would rescind the programme. DACA had been illegally promulgated, Mr Trump said, and the federal government would face lawsuits if it stayed on the books.
A sheaf of lawsuits soon arrived—but from DACA’s friends, not its foes. The manner in which Mr Trump scrapped the programme, several states and organisations claimed, was illegal under the Administrative Procedure Act (APA). It requires that Federal agencies may not be “arbitrary and capricious” in changing or nixing regulations. When they do not undertake demonstrably “reasoned” decision-making, agencies can be reined in by federal courts. A trio of rulings by judges in New York, California and the District of Columbia—two affirmed by appeals courts, the third appealed directly to the Supreme Court—have blocked Mr Trump’s DACA cancellation. The justices tarried when the government sought review of those decisions, sitting on the request for the first half of 2019, but in late June they jumped into the fray.
An oddity rests at the centre of the consolidated cases. The challengers admit that Mr Trump could have rescinded DACA legally if he had simply put forward a better reason. Had Mr Trump, who campaigned as an immigration hard-liner, ended Mr Obama’s initiative on policy grounds, there would have been little cause for legal complaint. But because Mr Trump asked Jeff Sessions, his first attorney-general, to try to justify the move as necessary to avoid lawsuits and to tackle a violation of the constitution, he ran up against the heart of the APA. In April 2018, Judge John Bates in Washington, DC, wrote that Mr Sessions’s position had “scant legal reasoning” and was “egregious” in light of the hundreds of thousands of immigrants who would lose protected status as a result. He gave Mr Trump another chance, but a second stab at an explanation from Kirstjen Nielsen, then Secretary of Homeland Security, fared no better. Her memo from June 2018 merely “repackage[d] legal arguments” Mr Trump’s administration had “previously made”, Judge Bates wrote.
Before the justices inquire into the government’s rationale, they will consider a threshold question: whether the Department of Homeland Security’s move is even reviewable by the judiciary. The government claims its rescission of DACA is “a quintessential exercise of enforcement discretion to which arbitrary-and-capricious review does not apply”. Just as the Obama administration opted to “adopt a policy of nonenforcement” of certain immigration rules, Mr Trump deciding whether “to retain such a policy” involves “‘a complicated balancing” of considerations only DHS is competent to conduct. But this position is in tension with Mr Trump’s reason for ditching DACA: it seems to acknowledge that Mr Obama did operate within the bounds of the law when he introduced the programme. It would seem that DHS either has discretion over matters of immigration enforcement, or it doesn’t.
The briefs from the parties revolve around rather dry matters of administrative law. But political and humanitarian issues loom behind the technical questions facing the Supreme Court: how America should treat a vulnerable population large enough to fill a medium-sized city. DACA recipients were brought to America before their 16th birthdays. They have graduated from high school, have served in the armed forces, or are in school or college. They have not been convicted of crimes or significant misdemeanours. Many have lived in the country for decades and, as the University of California brief points out, “have never known any other home”. DACA did not afford Dreamers a path to citizenship, and did not guarantee them legal status. But the two-year renewable terms assuring they would not be targeted for removal to their home countries, coupled with the ability to “come out of the shadows” and work, gave them an opportunity to build lives and families within America’s borders.
Glimmers of the importance of Mr Obama’s executive order to Dreamers’ lives are found in the plaintiffs’ briefs. But for more effusive arguments on the virtues of DACA, one might turn to some of the 36 amicus, or friend of the court, briefs opposing Mr Trump’s rescission. (Only eight amicus briefs defend the administration’s move, some rather half-heartedly.) Apple, a computing giant, tells the justices “[w]e are distressed at the prospect of ripping our DACA colleagues from the fabric of our company” should the government have its way. “Apple employs 443 Dreamers who come from more than 25 different countries on four continents”, including a maps analyst from Peru, a software development engineer from Mexico and a retail specialist from Brazil. “It’s a moral issue,” Apple writes. A coalition of 127 religious organisations says DACA’s demise “would cause irreparable harm” and pose a “severe detriment to the public”. And the Association of American Medical Colleges, representing all 154 accredited medical schools in America, warns that the “abrupt absence” of Dreamers “will leave a critical gap in the health professional workforce”.
Pleas like these may count for little as the Supreme Court contemplates the legal basis for Mr Trump’s move against the programme. Whether Mr Trump wins or loses, the justices’ ruling—expected in the spring—will remind voters of one of the most divisive issues in the presidential race as the campaign enters high gear.