Protestors in San Francisco in 2017 defending DACA.
Protestors in San Francisco in 2017 defending DACA. (Photo: Pax Ahimsa Gethen via Wikimedia Commons)

The Supreme Court ruled that efforts to end the program were “arbitrary and capricious.”

A June 20 Supreme Court decision invalidates the Trump administration’s attempt to rescind DACA (Deferred Action for Childhood Arrivals). For now, these immigrants — the “dreamers” — have retained the protections of DACA.

President Barack Obama’s 2012 DACA program protects from deportation some undocumented immigrants who were brought to the United States as children, and then raised and educated here. The program permits DACA recipients, about 700,000 people, to obtain work permits.

Five years later, on Sept. 5, 2017, Elaine Duke, acting secretary of Homeland Security in the Trump administration, issued a memorandum that “terminated the program.” The U.S. District Court for the District of Columbia found that Duke provided insufficient explanation for terminating the program. Duke’s successor as secretary of Homeland Security, Kirstjen M. Nielsen, then provided additional reasoning for rescinding DACA.

On June 20, 2020, Chief Justice John Roberts, writing for the Court, ruled that the efforts to end DACA were still “arbitrary and capricious,” and so DACA remains in force.

At this point, dreamers can breathe a sigh of relief, and the Trump administration expresses frustration.

The Legal Reasoning

Tim Moran, senior lecturer at the Irvin D. Reid Honors College of Wayne State University, cautions that “when the Supreme Court issues an opinion, it’s not because they ‘side with’ any particular issue. They examine the law and decide whether the law has been followed correctly.”

Robert Sedler
Robert Sedler

The majority of the court decided the case as a narrow question of the Administrative Procedures Act (APA). The executive cannot simply overturn an administrative rule without providing a sufficient rationale. Justice Roberts, joined by the liberal justices, found that Duke’s memorandum offered an “arbitrary and capricious” rationale, and that Nielsen’s later additions could not remedy that original lack.

Three conservative justices dissented in part on substantive grounds. Justice Clarence Thomas (supported by Justice Alito and Gorsuch) wrote that President Obama’s orders creating DACA were themselves illegal, so the court should have accepted the memorandum ending DACA. Congress never granted legal status to these aliens, and the Department of Homeland Security could not do so.

Justice Sonia Sotomayor dissented in part for a different reason: Ending DACA specifically targets Latino immigrants, and the court should have considered President Trump’s often-expressed animus against Latinos.

The decision, however, rests on a procedural question. Robert Sedler, professor of constitutional law at Wayne State University Law School, notes that Chief Justice Roberts here follows “the operative principle: Decide cases on the narrowest possible ground.”

What Does this Mean for DACA Recipients?

Local immigration attorney Ellie Mosko of Mosko Law PC put it this way: “DACA recipients … can now feel a little less anxiety. DACA was always a stopgap measure, a Band-Aid, imperfect at best. It gives people the chance to live here, to work, to travel and return, to help family members. It does not lead to citizenship (for people who know no other country).”

Ellie Mosko
Ellie Mosko

Mosko continued, “Applying for DACA status is always a difficult choice. To apply, a person comes out of the shadows and exposes himself or herself to the government. This gives rise to legitimate concerns in which a government could end such a program and turn around and target those previously protected and their families.”

Furthermore, “Homeland Security has not yet issued guidelines for accepting new DACA applications.”

Sedler agreed the decision does not protect DACA recipients from future deportation. “There is no security for ‘dreamers,’” he said. However, “for the foreseeable future at least, they need not worry about losing that status. And public opinion is strongly in favor of their being able to remain in the U.S.”

Questions about how the Trump administration will implement this ruling remain. According to Mosko, “the initial response from Homeland Security indicates that they consider DACA illegal.”

Paul Finkelman
Paul Finkelman

Chad Wolf, acting Homeland Security chief, simply said of DACA, “The program’s unlawful.” U.S. Citizenship and Immigration Services Deputy Director for Policy Joseph Edlow similarly rejects the Supreme Court Decision: “Today’s court opinion has no basis in law and merely delays the President’s lawful ability to end the illegal Deferred Action for Childhood Arrivals amnesty program.”

Legal historian Paul Finkelman, president of Gratz College in greater Philadelphia, finds Edlow’s statement “disturbing.”

“Almost all American Jews are the children, grandchildren and great-grandchildren of refugees,” Finkelman said. ”Thus, we should be applauding this ruling on DACA which reinvigorates our nation as a refuge of ‘the tired, the poor, the huddled masses, yearning to be free’ as the Jewish poet Emma Lazarus wrote in the poem that is on the Statue of Liberty.”

According to Mosko, the court did not address the legality of the original DACA program. “In effect,” she said, “the court creates a roadmap for the Trump administration to try again following the appropriate legal process.”


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