On June 28, 2019 the Supreme Court announced that it will take up a legal challenge to the Obama Executive Order that created the Deferred Action for Childhood Arrival (DACA) protections. The Court announcement came as the Justices wrapped up this year’s 2018-19 session. The Court term begins the first Monday in October and the oral arguments for the DACA case are scheduled for November 12 with the various parties submitting legal briefs before the Court starts its new term. It remains to be seen how quickly the Justices will rule after hearing the case in November. It could come as late as early-June, in the middle of a presidential election year.

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 EO key provisions are: applicants had to be at least 15 years of age; be able to prove they were under age 16 when they came to the US; they had to be living continuously in the U.S. since June 15, 2017; an applicant also had to be under age 31, had to be in school, graduated or completed high school or have been honorably discharged from the US military; and any applicant cannot be guilty of a felony, three misdemeanors or a significant misdemeanor.

Initially 800,000 people qualified. 689,000 were still covered when the Trump Administration announced in 2017, the President’s intention to end DACA in March of 2018. It began its efforts to freeze intake and end the programs in September 2017. The Trump Administration’s past compromises have at times proposed expanding eligibility for up to 1.8 million people in exchange for the wall and other immigrants’ law changes that were unacceptable to opponents. At one point the Administration proposed more than $25 billion in a wall “trust fund” that would cover the construction costs into the future.

Several Courts have ruled on the legality of the original DACA. Most recently the Ninth Circuit Court in California upheld it in late 2018. At that point the Court was responding to an action led by the California Attorney General Xavier Becerra. It found that former President Barack Obama’s creation of the program was a legitimate exercise of executive discretion. The three-judge panel of the U.S. 9th Circuit Court of Appeals, based in San Francisco, ruled unanimously in favor of a lower court’s preliminary injunction against the Administration’s attempt to end DACA.

Before that, in February of that year, a federal judge in New York blocked the Administration from ending DACA and in April, a third federal judge, in Washington, D.C., also ruled against the Administration.

The U.S. Justice Department has been asking the U.S. Supreme Court to intervene and bypass the appellate panel by reviewing the three previous lower level rulings blocking the Administration’s plan to terminate DACA.

About the Author:

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

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