On November 12, the U.S. Supreme Court heard oral arguments in Department of Homeland Security v. Regents of Univ. of Cal., et. al, which is a trio of cases suing the administration over its decision to end Deferred Action for Childhood Arrivals (DACA). The decision to end DACA was controversial because the president promised his administration would not end the program without a pathway for DACA-eligible people to remain in the country legally. DACA recipients and their families and employers have opened themselves up to government action should DACA be rescinded without the promised pathway. The League of Women Voters US has joined 44 other civic-minded organizations in filing an amicus brief in this case.
What are the arguments?
U.S. Solicitor General Francisco, representing the U.S. Department of Homeland Security, argued that the decision to end DACA was committed to the Department’s discretionary authority and thus, not reviewable by the courts. Justice Gorsuch pointed out that the Deferred Action for Parents of Americans (DAPA) decision was reviewable in part because of the reliance interests the program created for parents of American citizens. When asked by Justice Breyer about the “serious reliance interests” DACA created for recipients, their families, and hundreds of others, including healthcare organizations, military groups, labor unions, religious organizations, states, cities, and businesses that signed on to this case as amici, Solicitor General Francisco insisted that a paragraph in Secretary Nielsen’s memo sufficiently dealt with those interests in “excruciating detail.”
Solicitor Francisco also argued that even if the decision to end DACA is reviewable, the Department ended the program properly by presenting three independent reasons it should be ended: (1) DACA is illegal; (2) There are serious doubts about DACA’s legality; and (3) The Department generally opposes broad non-enforcement policies.
Theodore Olson, representing DACA recipients and civil rights groups, was pushed by Justices Alito and Gorsuch to outline a clear rule for what makes this agency decision reviewable while other similar decisions not to prosecute would not be reviewable. Mr. Olson pointed out that a large number of people, in addition to the 700,000 recipients, seriously relied on this program, and opened themselves and their businesses to the mercy of this enforcement agency. Thus, the agency is required to sufficiently acknowledge that reliance before it can end the policy, which he argues it did not do.
California Solicitor General Mongan, representing the Regents of the University of California, argued that the only memo the Court should be considering in this case is Secretary Duke’s memo because it was the contemporaneous announcement of DACA’s end. Secretary Duke’s memo claimed the reason for ending DACA was the administration’s belief that DACA was an illegal program. General Mongan noted that because the administration gave only the legal status reasoning in their first memo announcing the end of DACA, it cannot claim the decision is a non-reviewable discretionary decision now that the case is before the Supreme Court. General Mongan argues that the administration wants to shift blame for ending DACA to the illegality, and to Congress, the courts, and the previous administration. Remand would force the administration to take ownership of its decision and the president’s broken promise.
What does the Court want to know?
The Court seemed to focus on three questions: (1) Are there serious reliance interests here that make the decision to end DACA reviewable?; (2) Did the Department’s memos sufficiently address those reliance interests?; and (3) What good would remanding the decision back to the lower court do? In other words, would the administration still end DACA if the Court believes that it is a legal program? And would DACA recipients be satisfied by a more thorough discussion of reliance interests if the administration wrote another memo to that effect?
Though the government argued that it would have ended the program regardless of the legal status or questions about the legal status, it was pointed out many times that the first memo pointed only to the legal status as the reason for ending DACA and the second memo relied heavily on the legal status and tangled up the other reasoning with the legal status question, such that a judgment against the government might yield different results for the fate of DACA.
What happens now?
The loss of DACA protections would have devastating effect on the 700,000 recipients and their families, and the millions more relying on the government’s promise to create a pathway to citizenship. DACA recipients, who informed the government of their status and gave the government their employment and school information and places of residence, are especially vulnerable to detentions and deportations if the program ends. A loss will renew the culture of fear that keeps many immigrants from living full lives.
If the Court rules in favor of DACA recipients, they and their families will feel secure for the first time in three or more years. And the rest of the country can focus our efforts on ensuring Congress creates pathway to citizenship for people who have long called this country home.
A decision is expected on this case in summer 2020.