Bloomberg Law
Nov. 13, 2019, 3:02 PM

Supreme Court’s DACA Case Interwoven With Another Obama Program

Laura D. Francis
Laura D. Francis

The fate of former President Barack Obama’s signature immigration program is turning, in part, on its relationship to another program that never got off the ground.

The U.S. Supreme Court this week heard oral arguments in three related cases over the Trump administration’s decision to end the Deferred Action for Childhood Arrivals program. Launched in 2012, it provides deportation protection and work permits to some 660,000 young, undocumented immigrants who came to the U.S. as children.

The Trump administration’s primary reason for ending DACA is its belief that the program’s unlawful. Administration critics, however, say this allows the White House to avoid taking responsibility for a major shift in policy.

The administration’s stance largely is based on a 2015 split decision from the U.S. Court of Appeals for the Fifth Circuit finding that the Deferred Action for Parents of Americans and Lawful Permanent Residents program violated the law. A 2014 Obama administration program, DAPA would have provided the same benefits as DACA, but to the undocumented parents of U.S. citizens and holders of green cards.

DAPA was never implemented because of litigation.

President Donald Trump himself has waffled on DACA. Ending the program on his first day as president was part of his campaign platform, yet in a Time magazine interview shortly after being elected, he said he planned “to work something out that’s going to make people happy and proud.”

“Many of the people in DACA, no longer very young, are far from ‘angels,’” Trump said in a Nov. 12 tweet ahead of oral arguments. “Some are very tough, hardened criminals. President Obama said he had no legal right to sign order, but would anyway. If Supreme Court remedies with overturn, a deal will be made with Dems for them to stay!”

However, previous attempts to work out a legislative deal to provide lawful immigration status to DACA recipients have failed. One of those was a package that would have provided that status in exchange for funding another Trump campaign promise: a wall along the southern border.

‘Materially Indistinguishable’

The Department of Homeland Security was reasonable to conclude that it couldn’t maintain DACA because it’s “materially indistinguishable” from DAPA, which the Fifth Circuit found unlawful, the administration said in asking the Supreme Court to take the case.

The high court also heard the DAPA case during its 2015-2016 term, but the eight sitting justices split 4-4, leaving the Fifth Circuit decision in place.

There was no ruling from the Supreme Court one way or another, nor any indication as to how the individual justices voted on each issue.

The Obama administration “created a de facto amnesty program for hundreds of thousands of illegal aliens by abusing a limited, discretionary tool that Congress never intended to be applied to hundreds of thousands of people in a categorical fashion,” said Ken Cuccinelli, acting director of U.S. Citizenship and Immigration Services, which administers DACA.

Solicitor General Noel Francisco also led his Nov. 12 oral argument with the assertion that, based on this legal history, the DHS “reasonably determined” in September 2017 that DACA also is illegal.

Need ‘Reasoned Explanation’

But that’s not enough to justify the decision to end DACA, California Solicitor General Michael Mongan told the justices.

When agencies take action, they must provide a “reasoned explanation” for that course of action both to inform the public and to provide a basis for courts to review that decision, said Mongan, who argued on behalf of the states suing over the end of DACA.

Because of the different legal arguments at play in the DAPA case, merely saying that a federal appeals court ruled the program unlawful provides no way to know which legal argument formed the basis for the DHS decision, he said.

“The administration did not want to own this decision,” said Theodore Olson, an attorney with Gibson, Dunn & Crutcher who formerly served as solicitor general under President George W. Bush. DHS rationale at the time the DACA rescission was announced simply was that it was bound by then-Attorney General Jeff Sessions’ determination that the program is illegal.

Francisco said “we own this” in his later rebuttal.

Lower Courts Aligned

The vast majority of the federal courts that have considered the issue have said the DHS was wrong to end DACA, at least the way it did. Only one court—a federal district court in Maryland—ruled otherwise, but it was later overturned by the Fourth Circuit. That particular decision wasn’t part of the cases the Supreme Court considered.

Judge Andrew Hanen, the federal judge in Texas who in 2015 blocked DAPA from taking effect, refused to issue a similar order in a later challenge to DACA that was brought by Texas and other states. That case also isn’t before the Supreme Court.

The issues before the justices include not just whether the administration adequately justified its decision to end DACA, but also whether courts have any role at all in second-guessing that decision. On both, they appeared split.

A Supreme Court decision is likely next spring.

To contact the reporter on this story: Laura D. Francis in Washington at

To contact the editors responsible for this story: Martha Mueller Neff at; Jay-Anne B. Casuga at