March for DACA and TPS,” Victoria Pickering

June 18, 2020; New York Times, Politico, CNN, and Slate

In November of 2019, NPQ painted this picture of young DACA (Deferred Action for Childhood Arrival) participants outside the Supreme Court building after their hearing:

The plaintiffs held hands triumphantly on the steps of the US Supreme Court after their hearing on November 12, 2019. Not just a few, but a huge number of young people standing, smiling, and listening to the cheers of the many who stood outside the Court building with signs and banners to cheer them on.

On Thursday, those young people and 700,000 others really had something to cheer about. By the narrowest of margins, and with nothing totally secure (as the administration is free to file suit again), the Supreme Court ruled that the Trump administration could not end the DACA program and deport these young people who were brought to the US as children by undocumented parents and have known no other home for most of their lives.

The decision, written by Chief Justice John Roberts, who was joined by the Court’s more liberal justices, found that the administration’s move to do away with this Obama-era program lacked a sound legal basis. And thus, for one side, celebrations. For another, consternation.

In writing for the majority, the Chief Justice used the words “arbitrary and capricious” to describe the actions of acting Homeland Security Secretary Elaine Duke when she issued a brief at the request of then-Attorney General Jeff Sessions based on a court finding that a similar but more expansive program (DAPA, which would have protected the undocumented parents of citizens and lawful permanent residents) was found unlawful by the 5th US Circuit Court of Appeals

Roberts’ laser-like focus was on the law and, according to Mark Joseph Stern of Slate, he saved DACA because “the Trump administration bungled every step of its attempted repeal, hoping the courts would ignore its sloppy, dishonest corner-cutting. Four conservative justices were happy to do just that.” But for Roberts, the law was his primary concern, and he was not going to tolerate this kind of mess. But in the process, he also left the door open for a do-over.

No one should think the Chief Justice was not moved by the heart rending appeals of these young people. Indeed, the case for their value and contributions to this country has been made ever since November 2019. NPQ focused in April 2020 on the more than 27,000 DACA/Dreamers working in the health care field, who are considered essential workers and raised the question of if this would be considered by the Supreme Court. But Roberts’ stance remains grounded in the law, and how when Acting Secretary Duke sought to end DACA, she bungled the process.

Writing for the majority, Roberts noted the DACA recipients have “enrolled in degree programs, embarked on careers, started businesses, purchased homes, and even married and had children.” He noted the economic loss in abruptly deporting them, saying that it could “result in the loss of $215 billion in economic activity and an associated $60 billion in federal tax revenue over the next ten years.” And he went so far as to suggest that Duke could have “considered more accommodating termination dates for recipients caught in the middle of a time-bounded commitment, to allow them to, say, graduate from their course of study, complete their military service, or finish a medical treatment regimen.” This is again where the words “unlawful,” “arbitrary,” and “capricious” seem to echo.

When Duke was replaced by Kirstjen Nielsen as Secretary of Department of Homeland Secretary, she issued a new memo to try to fill the gaps in what Duke left behind. But Chief Justice Roberts would have none of this and rejected her memo as irrelevant in this case. He wrote that it is a foundational principle of administrative law that the courts can only look at “the grounds that the agency invoked when they took the action.” This meant that Nielsen had to build her case based on the actions taken by Duke. And that left her with little to build on.

In dissent, the conservative justices indicated that the decision was swayed by sympathy and politics, rather than by law. Writing for himself, and Justices Alito and Gorsuch (Justice Kavanaugh was surprisingly quiet), Justice Clarence Thomas said:

Today’s decision must be recognized for what it is: an effort to avoid a politically controversial but legally correct decision. The court could have made clear that the solution respondents seek must come from the legislative branch. In doing so, it has given the green light for future political battles to be fought in this court rather than where they rightfully belong—the political branches.

And the tweets and comments were fast and furious from the White House, including one tweet that said, “Do you get the impression that the Supreme Court doesn’t like me?” as the president faced his second major Supreme Court defeat in a week.

As for the Dreamers—the 700,000 DACA recipients—what lies ahead for them? For the moment, they can breathe a bit easier, knowing that they do not face deportation at any moment. They, and their families, and employers and universities can, perhaps, plan for the future… at least for the short term.

This was not a broad decision. The Trump administration can begin again if they wish and will most certainly do if re-elected. They just have to figure out how to do it legally, which, given the opportunity, they can do. And that would, again, put the Dreamers in the center of the target.

But for now, it is time to celebrate and dream and hope for a more permanent (legislative) solution. Martin Batalla Vidal, a DACA recipient who was the lead plaintiff in one of the Supreme Court Cases ruled on, said on Thursday, “For almost three years we have been living with immense uncertainty, and today we are able to breathe a sigh of relief. Nonetheless, our fight does not end with the decision by the Supreme Court; our fight continues for permanent protection for DACA recipients and all undocumented people.”—Carole Levine