Supreme Court DACA oral arguments regarding whether the Trump Administration acted correctly in attempting to terminate the program are scheduled for November 12.

DACA is short for the Deferred Action for Childhood Arrivals program, which was announced in 2012. DACA allows some persons with unlawful presence in the US after being brought to the country as children to receive a renewable 2-year period of deferred action from deportation and EAD work permits.

The Court will review the decisions in the following 3 Court of Appeals decisions on DACA:
  1. Trump v. NAACP (US Court of Appeals, District of Columbia)
  2. McAleenan v. Vidal (US Court of Appeals, 2nd Circuit)
  3. DHS v. Regents of the University of California (US Court of Appeals, 9th Circuit)

In each of the above decisions, the US Courts of Appeals left DACA in place.

The Supreme Court DACA case may result in one of the following 3 outcomes:

Outcome #1 – Allow DACA to Remain in Place

The Obama Administration stated that because the Federal Government only had enough funding to deport 400,000 of the millions of undocumented immigrants present in the U.S., it would exercise “prosecutorial discretion” and focus on deporting criminals and frequent border crossers. It established the DACA program to allow certain persons who had been brought to the U.S. by their parents at a young age to get work and travel permits.

Back in 1985, the Supreme Court held that “An agency’s decision not to prosecute or enforce is a decision generally committed to an agency’s absolute discretion.”

The Trump Administration argues that if the Executive Branch has the sole authority to decide whether or not to exercise prosecutorial discretion, the Courts lack the jurisdiction to force them to continue the DACA program.

The other side maintains that even though the Courts cannot intervene in policy decisions made by the Executive Branch, the Courts maintain the authority to rule on the legality of Executive actions. In the 2017 Memorandum ending the DACA program, DHS held that DACA was “unconstitutional”. Thus, since DHS made a legal determination, it is within the authority of the Federal Courts to decide whether this decision is legally correct.

Outcome #2 – Allow Trump to End DACA

The Supreme Court could allow the Trump Administration to end DACA without taking a position on whether the Executive Branch has the authority to implement such a program.

A 2018 memo from DHS Secretary Kirstjen Nielsen stated that DACA should be ended because it is “critically important for DHS to project a message that leaves no doubt regarding the clear, consistent, and transparent enforcement of the immigration laws against all classes and categories of aliens.”

The Supreme Court could possibly read this sentence and find that the Trump Administration ended DACA not as a matter of law, but as a matter of policy. If so, the Court could find that they have no authority to overrule this decision.

If the Supreme Court adopts this “logic”, and if Trump loses the 2020 election, the next President could reinstate the DACA program.

Outcome #3 – Rule that DACA is Illegal

It may be that a majority of Justices on the Supreme Court agree with the Trump Administration that DACA is illegal.

In 2016, the Court split 4 to 4 in a case challenging the legally of President Obama’s establishment of the Deferred Action for Parents of Americans (DAPA) program.

Since then, the Trump Administration has appointed 2 Justices to the Supreme Court.

The Court could rule that the Executive Branch lacks the authority to create programs like DACA without the consent of Congress.

Conclusion – Supreme Court DACA

Although the Supreme Court will hear oral arguments on DACA tomorrow, it is not expected that the Court will issue a decision on the case until the Spring or Summer of 2020.

Even if the Supreme Court allows the Administration to end DACA, Congress could pass a bill to protect DACA recipients. Hopefully, President Trump would not hold the bill hostage to force Congress to enact an anti-immigrant agenda as he did in 2017.

Supreme Court DACA – Additional Resources