On Thursday, June 18, 2020, by a vote of 5 to 4, the U.S. Supreme Court rejected the Trump Administration’s attempt to end the Deferred Action for Childhood Arrivals (DACA) program. The Court case joined cases that originated in New York, California, and Washington, D.C.

The Court decision focused on how the Administration applied the Administrative Procedure Act (APA) and whether they violated that Act. The bottom line is the decision kills the President’s effort and his 2016 promise that he would “immediately terminate” President Obama’s executive order that created the DACA protection. Although the President tweeted his intention to immediately respond, the fate of DACA will have to be decided in the next presidential term and session of Congress (barring a miracle lame-duck fix).

Chief Justice John Roberts joined the majority for the second time in the week in not siding with the more conservative majority of the Court, and in fact, he wrote the majority opinion. The majority opinion and case focused on whether the Trump Administration (Department of Homeland Security) followed the proper steps under the Administrative Procedure Act (APA).

The majority opinion said, “We do not decide whether DACA or its rescission are sound policies. “The wisdom” of those decisions “is none of our concern.” Chenery II, 332 U. S., at 207. We address only whether the agency complied with the procedural requirement that it provide a reasoned explanation for its action. Here the agency failed to consider the conspicuous issues of whether to retain forbearance and what if anything to do about the hardship to DACA recipients. That dual failure raises doubts about whether the agency appreciated the scope of its discretion or exercised that discretion in a reasonable manner. The appropriate recourse is therefore to remand to DHS so that it may consider the problem anew.”

The Chief Justice was joined by Justice Ruth Bader Ginsberg, Justice Stephen Breyer, Justice Elizabeth Kagan, and with her own opinion, Justice Sonia Sotomayor. Justice Sotomayor supported all of the majority opinion except for section IV, which went to the issue of whether or not the Administration violated the equal protection guarantee of the Constitution’s Fifth Amendment and the allegation that the Executive, motivated by animus, ended a program that disproportionately benefits certain ethnic groups. The majority found that “the statements [of the President] fail to raise a plausible inference that the rescission was motivated by animus.” Disagreeing with this part of the majority opinion, Justice Sotomayor wrote, “I would instead permit respondents to develop their equal protection claims on remand.”

DACA was created by President Obama when Congress failed to pass “DREAMERS” legislation that had been a long-time bipartisan bill stretching over more than a decade. Under the Obama Executive Order key provisions require applicants to be at least 15 years of age; be able to prove they were under age 16 when they came to the U.S. and had to be living continuously in the U.S. since June 15, 2017.

Initially, 800,000 people qualified, and 689,000 were still covered when the Trump Administration announced in 2017, the President’s intention to end DACA in March of 2018. The Trump Administration began its efforts to freeze intake and end the program in September 2017. In 2018, the CWLA National Conference featured a presentation by United We Dream in support of DACA.

The remaining four justices were also split in their minority view. Justice Clarence Thomas wrote the lead minority opinion with Justice Neil Gorsuch and Justices Samuel Alito joining in parts of the Thomas opinion, while Justice Brett Kavanaugh wrote a separate decision as part of the minority. Justice Thomas wrote:

“DHS created DACA during the Obama administration without any statutory authorization and without going through the requisite rulemaking process. As a result, the program was unlawful from its inception. The majority does not even attempt to explain why a court has the authority to scrutinize an agency’s policy reasons for rescinding an unlawful program under the arbitrary and capricious microscope. The decision to countermand an unlawful agency action is clearly reasonable. So long as the agency’s determination of illegality is sound, our review should be at an end.”

In his concurring minority opinion, Justice Alito wrote, “What this means is that the Federal Judiciary, without holding that DACA cannot be rescinded, has prevented that from occurring during an entire Presidential term. Our constitutional system is not supposed to work that way. I join JUSTICE THOMAS’s opinion. DACA presents a delicate political issue, but that is not our business. As JUSTICE THOMAS explains, DACA was unlawful from the start, and that alone is sufficient to justify its termination.”

Justice Brett Kavanaugh argued that the Administration did offer a rationale for their actions under the Administrative Procedural Act (APA) and concluded by saying, “I therefore respectfully dissent from the Court’s judgment on plaintiffs’ APA claim, and I concur in the judgment insofar as the Court rejects plaintiffs’ equal protection claim.”

Before last November’s Supreme Court session on DACA, the President tweeted, “Many of the people in DACA, no longer very young, are far from ‘angels. Some are very tough, hardened criminals. President Obama said he had no legal right to sign order but would anyway. If the Supreme Court remedies with overturning, a deal will be made with Dems for them to stay!”

Some might view the President’s comment via tweeter as being an “untruth” since applicants had to be under age 31, had to be in school, graduated or completed high school or have been honorably discharged from the U.S. military; and any applicant cannot be guilty of a felony, three misdemeanors or a significant misdemeanor.

Last October 2019, CWLA joined more than 30 national groups submitting an amicus brief in support of the Deferred Action for Childhood Arrivals (DACA) and in opposition to the Trump Administration’s attempt to repeal the original executive order.

The brief states: “The government’s decision to end the Deferred Action for Childhood Arrivals (DACA) policy has endangered the mental and physical health of hundreds of thousands of children—mostly U.S. citizens—whose parents are DACA recipients. As organizations dedicated to supporting children and promoting their well-being, amici are deeply concerned about the immediate and long-term effects of ending the DACA policy on this population. Since the Trump Administration announced the rescission of DACA, children of DACA recipients live with the fear that their parents will be taken away, and that fear negatively impacts all aspects of their lives, including their health, education, and overall family stability.”

CWLA joined the lead filers of the American Professional Society on the Abuse of Children, the American Academy of Pediatrics, and the Center for Law and Social Policy on the Amicus Brief.

The amicus brief can be found here, with the appendix here.

About the Author:

John Sciamanna is CWLA's Vice President of Public Policy.

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