WHEN he campaigned for the presidency, Donald Trump promised to “immediately terminate” Deferred Action on Childhood Arrivals (DACA), Barack Obama’s programme to protect Dreamers, undocumented immigrants brought to America as children. More than eight months after taking office, Mr Trump followed through on that pledge. In September 2017 Jeff Sessions, his first attorney-general, announced that Mr Obama’s executive action would be axed. Shielding certain young undocumented aliens from deportation and giving them authorisation to work, Mr Sessions wrote, had been undertaken “without proper statutory authority” and in violation of the constitution.
Organisations and states immediately challenged the reversal; federal courts in New York, California and the District of Columbia halted the Trump administration’s move. Mr Sessions’s reasoning, the courts ruled, did not satisfy the terms of the Administrative Procedure Act (APA)—a law requiring federal agencies to justify regulatory changes in ways that aren’t “arbitrary and capricious”. Simply declaring that DACA was illegal and exposed the administration to lawsuits did not clear that bar.
On November 12th, when it took up Department of Homeland Security v Regents of the University of California, the Supreme Court considered whether the decision to ditch DACA is reviewable by the courts and, if it is, whether Mr Trump’s move violates the APA. “There’s a strange element to your argument”, Justice Ruth Bader Ginsburg told Noel Francisco, the solicitor general. “You’re arguing this is a discretionary matter”, but at the same time, “you say the agency had no discretion” because Mr Obama’s programme was illegal and “the law requires you to drop DACA”.
Mr Francisco’s reply—that the administration chose to terminate DACA for policy reasons, not just because it regarded the programme as illegal—became the main point of contention in the 80-minute hearing. The original memo explaining DACA’s demise written by Elaine Duke, then acting secretary of homeland security, relied exclusively on DACA’s supposed illegality. But in 2018 when Judge John Bates gave the Trump administration a second chance to explain itself, the agency’s next secretary, Kirstjen Nielsen, drafted another memo citing “sound reasons of enforcement policy” for abandoning the Dreamers.
Judge Bates saw the new missive—a scant three pages—as failing to “elaborate meaningfully” on the administration’s rationale. But for the five conservative justices, including the newest, Brett Kavanaugh, that might be enough. Ms Nielsen’s memo, Justice Kavanaugh told Theodore Olson, a lawyer for the Dreamers, lays out several “policy rationales” for ending DACA in addition to the matter of its questionable legal status.
Only in the closing minutes of the hearing did those three reasons come to light. Justice Stephen Breyer ticked them off, observing that the first two—that relief should be granted not for “broad classes” of aliens but on a “case-by-case basis”—are really “conclusion[s]”, not reasons. Only the third, Justice Breyer said, is a genuine, if questionable, rationale: that America should “project a message that leaves no doubt regarding the clear, consistent and transparent enforcement of the immigration laws”.
The stultifyingly dry colloquy on memos and finer points of administrative law rarely gave way to discussion of how ending DACA would impact the lives of some 700,000 people who rely on its protections to build careers and raise families in America. Justice Sonia Sotomayor jumped in to outline the stakes, asking Mr Francisco why Mr Trump is bent on removing immigrants “who haven’t committed crimes, who are lawfully employed, who are paying taxes, who pose no threat to our security”. Why doesn’t the president acknowledge “that this is not about the law” but about a “choice to destroy lives”?
Justice Breyer expanded the analysis, referring to the dozens of amicus briefs filed on behalf of DACA recipients. The “reliance interests”, as the law puts it, apply not just to the hundreds of thousands of immigrants under DACA’s umbrella but to hundreds of healthcare organisations, labour unions, religious groups and businesses where they study, teach and work.
It seems the best Dreamers and their supporters can hope for when the justices rule in the spring is a decision tossing the ball back in the Trump administration’s court for a third shot at justifying DACA’s cancellation. The plaintiffs acknowledge that a fuller explanation would do the trick, but they seem to hold out hope that Mr Trump would reconsider his position—particularly given how broadly popular DACA remains—if he could no longer hide behind the claim that his hands are tied.
A win for the president would not herald the imminent deportation of DACA’s 700,000 beneficiaries. The law-abiding individuals, many who now have children of their own, would not suddenly become high-priority candidates for removal in an immigration system equipped to deport only a small percentage of the undocumented population. The demise of DACA, however, could spur many to return to the shadows.