DACA at the Supreme Court – The Last Stop Before Dreamers Leave Legal Limbo

Deferred Action for Childhood Arrivals (DACA) was first implemented by President Obama in 2012 to give individuals who were brought to the United States as children, so called “Dreamers,” an opportunity to have legal status, work authorization, and a sense of security that they would not be targets of immigration enforcement efforts by ICE, albeit in two year increments requiring an expensive application with strict eligibility requirements.  As of September 4, 2017, there were nearly 700,000 active recipients of DACA in the United States.

However, on September 5, 2017, the Trump Administration sought to end this program, citing its initial illegality.  This sparked outrage across the country, and numerous court battles that eventually pushed DACA as a program, and those who had received it, into a legal limbo.  Injunctions issued by three different courts stopped the program from being entirely ended, though the future of the program remained tenuous.  New applications would not be accepted, but those who previously had DACA were permitted to renew their status for the pendency of the litigation surrounding the Trump administration’s decision to rescind the policy.

Now, two years later, with no Congressional action, the Supreme Court of the United States has heard arguments and taken legal briefs on the fate of DACA in the case Department of Homeland Security v. Regents of the University of California.  Notably, it is uncontested that the Trump administration had the legal authority to end the program – what is at issue is whether the decision to end DACA was done with sufficient process.  When an executive agency, like the Department of Homeland Security, decides to change a policy, it must provide a reasoned justification.  The questions before the Court are 1) whether the Court can even review a discretionary decision of an agency, such as a decision to end this program of “Deferred Action,” and 2) if the Court can review the decision, whether the 2017 policy memorandum citing DACA’s potential illegality, supplemented by a 2018 memorandum purportedly weighing the reliance interests that DACA has created, provided a sufficiently reasoned justification for DACA’s rescission.

Professional court watchers found the Justices of the Supreme Court hard to read in this case.  Decisions both ways are possible, but it is generally thought that the Court will side with the Trump administration’s decision to end DACA.  Either way, it is unlikely that a decision will be made by the Court until the spring or the summer.

So, where does this leave those who currently have DACA?  As of right now, in the same place they were in at the beginning of November.  USCIS is continuing to accept and adjudicate renewal applications.  When the Court reaches a decision, it will either agree with the Trump administration and allow the program to be rescinded immediately or it will side with advocates for Dreamers and require additional process before DACA is rescinded, slowing down any eventual termination of the program.  What is unlikely, however, is that the decision will give any sort of permanence to the DACA program.  Unless and until Congressional action creates a permanent solution for Dreamers, DACA’s days appear to be numbered.

Some few silver linings for those with DACA, small though they may be, are first that it is exceedingly unlikely that even if the program is ended that those currently in DACA status will have that status revoked.  This case has also, once again, cast DACA into the public discourse, and where Congress has failed to act before, it may be compelled to act now.  Indeed, on June 4, 2019, the House passed the “American Dream and Promise Act of 2019,” which would give a permanent pathway to legal status for Dreamers.  The bill now awaits a vote in the Senate, and a decision by the Supreme Court may put sufficient pressure on the Senate to finally take action.

Memorandum on Rescission of Deferred Action for Childhood Arrivals (2017) — https://www.dhs.gov/news/2017/09/05/memorandum-rescission-daca

Memorandum from Secretary Kirstjen M. Nielsen on the rescission of DACA (2018) — https://www.dhs.gov/sites/default/files/publications/18_0622_S1_Memorandum_DACA.pdf

Amy Howe, Argument analysis: Justices torn, hard to read in challenge to decision to end DACA, SCOTUSblog (Nov. 12, 2019) — https://www.scotusblog.com/2019/11/argument-analysis-justices-torn-hard-to-read-in-challenge-to-decision-to-end-daca/

American Dream and Promise Act of 2019 — https://www.congress.gov/bill/116th-congress/house-bill/6/text