Background
Deferred Action for Childhood Arrivals (“DACA”) was implemented by President Obama as a means to provide work authorization and prevent the removal of young undocumented immigrants brought to the United States as children. Since DACA was enacted by executive order in 2012, over 700,000 individuals have taken advantage of the program. This means that they are protected from removal and can apply for work authorization, as well as obtain a driver’s license and social security benefits. In keeping with one of his controversial campaign promises, President Trump announced that his administration was moving to officially terminate DACA on September 5, 2017 amidst significant backlash. On November 12, 2019, the Supreme Court began to hear oral arguments challenging President Trump’s formal termination of DACA. The high-stakes Supreme Court decision will dictate the future of hundreds of thousands of young immigrants and can have serious consequences for employers and the economy.
The Arguments
The salient issues of the November 12 arguments were whether the Department of Homeland Security’s decision to terminate DACA is even subject to judicial review, and whether the decision to terminate DACA is lawful with respect to the agency’s procedures.
Regarding the first issue, U.S. Solicitor General Noel Francisco argued that the administration’s decision to end DACA is simply rescinding a former administration’s immigration policy, something that falls within the agency’s discretion and cannot be reviewed by the courts. The challengers, represented by Theodore B. Olson, argued that the agency’s decision to terminate is reviewable by the courts because the program created an unusual degree of reliance for the individuals that benefited from the program.
While it is undisputed that the Trump administration has the power to terminate DACA, the second issue at the core of the November 12 oral arguments asked the justices to analyze the procedural steps taken to rescind the program. Olson and other pro-DACA attorneys argued that the agency failed to provide a clear and complete rationale for terminating the program as required by the Administrative Procedure Act. The government claimed the agency had provided adequate legal and policy reasons for terminating DACA and cited its temporary nature to push back on the reliance interest argument.
While Francisco requested the Supreme Court side with the government and allow President Trump’s administration to end DACA, the challengers argued that the case should be sent back to the lower courts to prove an “accurate, reasoned, rational, and legally sound explanation” for its decision to end DACA. While there was much discussion about DACA recipients’ reliance on the program, the justices appeared largely skeptical about remanding the case, unconvinced that more litigation would make a difference beyond keeping DACA recipients in limbo.
Consequences of Terminating DACA
While the Supreme Court may be able to keep DACA alive longer, the conservative-leaning Court is predicted to allow President Trump’s administration to terminate the program. The impact DACA’s termination would have on current and potential recipients (90% of recipients are employed, and 45% are in school) is apparent, but ending DACA would also affect the economy. For example, a group of over 140 concerned business associations filed an amicus curiae brief stating their support for DACA. The brief argues the U.S. economy would lose hundreds of billions in GDP over the next decade and their personal businesses would suffer from the loss of the DACA workforce.
The Supreme Court is expected to make a decision about DACA in the summer of 2020. Until then, DACA is likely remain as is and DACA recipients with valid authorization may continue to work and receive benefits.