Bloomberg Law
Nov. 12, 2019, 4:37 PMUpdated: Nov. 12, 2019, 9:16 PM

Supreme Court Justices Seem Inclined to Let Trump Cancel DACA

Greg Stohr
Greg Stohr
Bloomberg News

U.S. Supreme Court justices seemed inclined to let President Donald Trump cancel an Obama-era program that shields almost 700,000 young undocumented immigrants from deportation in a case with broad political and humanitarian ramifications.

Hearing arguments Tuesday in Washington, the justices suggested they will be ideologically divided in the case, with at least the court’s five conservatives backing the Trump administration.

The case marks a pivotal moment in Trump’s two-year campaign to unravel former President Barack Obama’s Deferred Action for Childhood Arrivals program. DACA, as it’s known, protects those immigrants from deportation and lets them seek jobs.

Chief Justice John Roberts indicated that he saw DACA as illegal from the start, describing it as covering far more people than previous deferred deportation programs. Justice Brett Kavanaugh hinted he was satisfied with an explanation for the cancellation provided by then-Secretary of Homeland Security Kirstjen Nielsen after the litigation had started.

“I assume that was a very considered decision,” Kavanaugh said.

Some of the liberal justices indicated they will vote to block Trump. Justice Sonia Sotomayor said Trump had told DACA-eligible people “that they were safe under him and that he would find a way to keep them here.“

“And so he hasn’t and, instead, he’s done this,” Sotomayor said. “And that, I think, is something to be considered before you rescind a policy.“

Election-Year Ruling

Trump suggested Tuesday that a ruling in his favor would force Democrats to negotiate a way to keep the DACA recipients in the country. “A deal will be made with Dems for them to stay!” Trump tweeted.

Trump also said in the tweet that some DACA recipients are “very tough, hardened criminals.” But under the program’s rules, DACA applicants can’t have been convicted of a felony or serious misdemeanor or pose a threat to national security or public safety.

Obama created the program in 2012, bypassing Congress after legislation known as the Dream Act had stalled. That measure would have created a path to legal status for young undocumented immigrants, known as Dreamers.

The Supreme Court dispute is timed to be decided during the heart of next year’s presidential campaign, underscoring the stakes for the divisive subject of immigration and for the court itself.

It’s the third time in as many terms the Supreme Court has weighed a major Trump administration initiative, following rulings that upheld the president’s travel ban and blocked the use of a question about citizenship in the 2020 census.

Universities, Microsoft

The administration is challenging lower court rulings that blocked it from rescinding the DACA program. Universities, labor unions, Democratic-led states, Microsoft Corp. and DACA recipients are battling to keep the program alive at least through the election.

The administration moved to rescind DACA in September 2017 in the face of a threatened challenge to the program by Republican-led states. At the time, the administration said it agreed with those states that the program went beyond Obama’s authority under the federal immigration laws.

Trump’s team has since tried to supplement that legal rationale with additional reasons based on policy grounds. In a June 2018 memo, Nielsen said the administration believed a case-by-case approach would be wiser than DACA’s exemption of a broad category of people from immigration enforcement.

Critics say the three-page memo was after the fact and didn’t show any real effort to grapple with the potential implications.

“The administration did not want to own this decision,” Theodore Olson, the lawyer arguing for the DACA recipients, told the justices.

U.S. Solicitor General Noel Francisco told the justices that the Trump administration stood behind the decision to end DACA on policy grounds. “We own this,” he said.

Two-Year Shield

More than 660,000 people had active DACA status as of June 30, and they had an average age of 25 1/2, according to government data. A 2017 study found that 91% of DACA recipients were employed, and 45% were enrolled in school. They arrived in the U.S. at an average age of 6 1/2, and the vast majority were born in Mexico.

Defenders of DACA say it’s simply a broad exercise of the president’s accepted power to set priorities in deciding who should be deported. The DACA program offers successful applicants a renewable two-year shield from deportation and the right to apply for work permits.

“Everybody agrees you have to prioritize,” Justice Ruth Bader Ginsburg said, referring to an estimate of 11 million people who are in the country illegally. “How do you do it other than categorically?”

Justice Elena Kagan said federal immigration law gives “quite a lot of discretion” to administration officials. She pressed Francisco to specify what part of the immigration law DACA violated.

In defending DHS’s conclusion that DACA is illegal, the administration points to a 2015 decision from a New Orleans-based federal appeals court. That ruling blocked a related Obama-era program, known as Deferred Action for Parents of Americans, which would have shielded as many as 4 million undocumented immigrants whose children are either U.S. citizens or legal permanent residents.

4-4 Ruling

The DAPA case then went to a shorthanded Supreme Court, which divided 4-4, upholding the ruling without setting a nationwide precedent.

Roberts suggested Tuesday that litigation gave the Trump administration adequate grounds for canceling DACA.

“You’ve got a court of appeals decision affirmed by an equally divided Supreme Court,” Roberts said. “Can’t he just say that’s the basis on which I’m making this decision?“

A ruling in the Trump administration’s favor wouldn’t necessarily mean all, or even any, of the Dreamers would be deported. Before the courts intervened, the administration was trying to wind down the program gradually, barring people from renewing their status after a specified date but not challenging their current rights.

A loss for Trump at the Supreme Court could leave room for him to try again to rescind DACA using a different explanation, though he might be hard-pressed to do so before the 2020 election.

The lead case is Department of Homeland Security v. Regents of the University of California, 18-587.

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Greg Stohr in Washington at

To contact the editors responsible for this story:
Joe Sobczyk at

Laurie Asséo, Justin Blum

© 2019 Bloomberg L.P. All rights reserved. Used with permission.

(Updates with comments from Ginsburg, Kagan, Roberts starting in 21st paragraph)