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| The Supreme Court deals Trump a blow. He can't repeal DACA. |
Trump was going to end the program that would have affected 650,000 young immigrants and possibly their children who were born in the United States.
Department of Homeland Security v. Regents of the University of California was a Supreme Court case that ruled on the 2017 U.S. Department of Homeland Security (DHS) order to rescind the Deferred Action for Childhood Arrivals (DACA) immigration program established in 2012.
DACA was established under President Barack Obama to allow children brought into the United States without proper immigration authorization to defer deportation and maintain good behavior to receive a work permit to remain in the U.S.; such children were also called "Dreamers" based on the failed DREAM Act. On his election, President Donald Trump vowed to end the DACA, and the DHS rescinded the program in June 2017. Numerous lawsuits were filed, including one by the University of California system, which many "Dreamers" attended, asserting that the rescission violated rights under the APA and the right to procedural due process under the Fifth Amendment.
The University sought and received an injunction from the District Court Judge William Alsup to require DHS to maintain the DACA until the case was decided. DHS challenged this order to the United States Court of Appeals for the Ninth Circuit, which upheld Judge Alsup's ruling in November 2018, and ordered the DHS to maintain the DACA throughout the U.S.
In a 5-4 decision, with Chief Justice John Roberts joining the progressive members to author the opinion, the court said the Department of Homeland Security's move to eliminate the program was done in an "arbitrary and capricious" manner although they did not rule on the merits of the program itself.
Roberts along with progressive justices Stephen Breyer, Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan ruled on the decision. The four conservative justices Samuel Alito, Clarence Thomas, Brett Kavanaugh and Neil Gorsuch shunned the ruling.
"We do not decide whether DACA or its rescission are sound policies. 'The wisdom' of those decisions 'is none of our concern,'" Roberts wrote in his opinion. "We address only whether the agency complied with the procedural requirement that it provide a reasoned explanation for its action."
Trump quickly reacted to the decision, which came days after an opinion from his own appointee Justice Neil Gorsuch that said employment discrimination based on sexual orientation or gender identity was prohibited under Title VII of the Civil Rights Act.
"These horrible & politically charged decisions coming out of the Supreme Court are shotgun blasts into the face of people that are proud to call themselves Republicans or Conservatives," Trump tweeted Thursday morning, suggesting that the Second Amendment could be at risk if he does not get elected and have the chance to potentially appoint more justices.
Trump can try again but he will have to do it through legal channels and not through an executive order.
This is a blow to a huge campaign promise that he would eliminate DACA by the end of his first term.
These horrible & politically charged decisions coming out of the Supreme Court are shotgun blasts into the face of people that are proud to call themselves Republicans or Conservatives. We need more Justices or we will lose our 2nd. Amendment & everything else. Vote Trump 2020!— Donald J. Trump (@realDonaldTrump) June 18, 2020
Do you get the impression that the Supreme Court doesn’t like me?— Donald J. Trump (@realDonaldTrump) June 18, 2020
The recent Supreme Court decisions, not only on DACA, Sanctuary Cities, Census, and others, tell you only one thing, we need NEW JUSTICES of the Supreme Court. If the Radical Left Democrats assume power, your Second Amendment, Right to Life, Secure Borders, and...— Donald J. Trump (@realDonaldTrump) June 18, 2020
...Religious Liberty, among many other things, are OVER and GONE!— Donald J. Trump (@realDonaldTrump) June 18, 2020
The DACA decision, while a highly political one, and seemingly not based on the law, gives the President of the United States far more power than EVER anticipated. Nevertheless, I will only act in the best interests of the United States of America!— Donald J. Trump (@realDonaldTrump) June 18, 2020
As President of the United States, I am asking for a legal solution on DACA, not a political one, consistent with the rule of law. The Supreme Court is not willing to give us one, so now we have to start this process all over again.— Donald J. Trump (@realDonaldTrump) June 18, 2020
I will be releasing a new list of Conservative Supreme Court Justice nominees, which may include some, or many of those already on the list, by September 1, 2020. If given the opportunity, I will only choose from this list, as in the past, a Conservative Supreme Court Justice...— Donald J. Trump (@realDonaldTrump) June 18, 2020
...Based on decisions being rendered now, this list is more important than ever before (Second Amendment, Right to Life, Religous Liberty, etc.) – VOTE 2020!— Donald J. Trump (@realDonaldTrump) June 18, 2020
This issue will certainly play upon Trump's base who continues to hold an anti-immigrant stance. We are experiencing a global pandemic, record unemployment, over 140,000 people dead from COVID-19, unrest in the country due to the fatal police shooting of African Americans and we're in a major recession.
In Thursday's opinion, Roberts wrote that when the administration rescinded DACA it "failed to consider the conspicuous issues of whether to retain forbearance" -- referring to the non-enforcement of immigration laws to remove those with DACA protection -- as well as the impact the decision would have on DACA recipients who have relied on the program.
"That dual failure raises doubts about whether the agency appreciated the scope of its discretion or exercised that discretion in a reasonable manner," Roberts wrote, noting that the administration could have scrapped the benefits provided by DACA while keeping the non-enforcement policy, but instead eliminated all of it without even giving a reason for ceasing non-enforcement.
"The appropriate recourse is therefore to remand to DHS so that it may consider the problem anew."
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| Trump vows to carry forth despite the setback. |
Roberts made clear that the administration does indeed have the power to rescind DACA, just not in this fashion.
"The dispute before the Court is not whether DHS may rescind DACA. All parties agree that it may," the chief justice wrote. "The dispute is instead primarily about the procedure the agency followed in doing so."
The Trump administration had argued that the decision to eliminate DACA does not fall under the purview of the APA because DACA itself was merely a decision not to enforce existing law against a certain group of people. The Supreme Court disagreed, noting that "DACA is not simply a non-enforcement policy" because it is an actual program where people apply to receive a benefit.
"In short, the DACA Memorandum does not announce a passive non-enforcement policy; it created a program for conferring affirmative immigration relief," Roberts wrote. "The creation of that program—and its rescission—is an 'action [that] provides a focus for judicial review.'"
The court also disagreed with the administration's position that the Immigration and Naturalization Act prohibits the decision to rescind DACA from being reviewed by the courts.
Justice Clarence Thomas wrote in a dissenting opinion that the decision to repeal DACA was correct, and that the majority is holding the Trump administration's decision to a higher standard than the order that established DACA in the first place.
"These cases could—and should—have ended with a determination that his legal conclusion was correct," Thomas wrote. "Instead, the majority today concludes that DHS was required to do far more."
He continued: "Without grounding its position in either the APA or precedent, the majority declares that DHS was required to overlook DACA’s obvious legal deficiencies and provide additional policy reasons and justifications before restoring the rule of law. This holding is incorrect, and it will hamstring all future agency attempts to undo actions that exceed statutory authority. I would therefore reverse the judgments below and remand with instructions to dissolve the nationwide injunctions.”
Thomas accused the court's majority of wanting to avoid making waves, even it if meant getting the law wrong.
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| Chief Justice John Roberts sided with the four progressive justices in the ruling. |
At issue was a program created under executive order that gave about 700,000 people brought to the United States illegally as children the opportunity to receive a renewable two-year period of deferred action from deportation and become eligible for a work permit.
Hundreds of "Dreamers" and their supporters had rallied outside the court during the November oral arguments. Some carried signs, such as "Build Bridges, Not Walls." Trump at times seemed to be pressing instead for a legislative solution, and had tweeted earlier that morning that if the administration prevailed, "a deal will be made with the Dems for them to stay!"
The Trump administration announced its plan to phase out the program in 2017, only for the federal courts to rule that it could not apply retroactively and that DACA should be restarted in full. The White House fought back on those decisions, saying the president has broad authority over immigration enforcement policy.
The Justice Department had argued the DACA program is not working and is unlawful, and that the president should have the "absolute discretion" to adopt a revised overall immigration strategy. A dozen states led by Texas were among the parties backing the administration.
DACA proponents have argued that Trump’s planned termination violates federal law requiring adequate notice-and-comment periods before certain federal rules are changed, as well as other constitutional equal protection and due process guarantees.
They say the government has given only cursory explanations for justifying DACA's demise. By contrast, they say, the economic and social benefits for Dreamers and for the country are indisputable.
A host of civil rights groups filed separate briefs in support, along with several states including New York and California.
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