Week 37: Supreme Court halts administration attempt to end DACA
Immigration news, in context.
This is the thirty-seventh edition of BORDER/LINES, a weekly newsletter by Felipe De La Hoz and Gaby Del Valle designed to get you up to speed on the big developments in immigration policy. Reach out with feedback, suggestions, tips, and ideas at BorderLines.News@protonmail.ch.
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This week’s edition:
In The Big Picture, we examine the Supreme Court’s decision to block the Trump administration’s recent attempt to terminate the DACA program
In Under the Radar, we look at some recent shifts in states’ and localities’ relationship with immigration enforcement
In Next Destination, we delve into the administration’s latest anti-asylum measure, which would involve denying asylum seekers work permits
The Big Picture
The news: In a challenge against the Trump administration’s efforts to terminate the Deferred Action for Childhood Arrivals (DACA) program — which provides protections and work authorization for people who were brought to the country without immigration status as children, provided certain other criteria are fulfilled — the Supreme Court ruled on Thursday that it both had the power to review this administrative decision, and that the act was unlawful, thus keeping DACA in place.
What’s happening?
It’s essential to grasp not only what this order is, but what it isn’t: a decision on the legality of DACA, or on the president’s ability to end the program. The court expressly did not consider whether DACA was illegal, and its legality was ultimately not fundamental to the case. The second question was not in dispute; yes, the president does have the authority to terminate the DACA program, just as it was the executive’s discretionary enforcement authority that allowed the program to exist in the first place. What the court ruled on was whether the process of this termination was something it could intervene on and, if so, whether it was done in a lawful manner. The ruling was yes and no, respectively.
Before we dive in completely, there are a few key concepts that need to be clarified, primarily the notions of reviewability and administrative procedure. While they can and do fill entire law school classes, here are the abridged versions for our purposes: executive and administrative agencies derive authority from laws enacted by Congress. The agencies then decide how to apply this authority, utilizing their own expertise and discretion. There’s a presumption that people can seek redress in court if they have been harmed or treated unlawfully by executive agencies, but some agency actions are specifically statutorily unreviewable. Other actions, while not explicitly laid out as such, are understood to fall under the scope of an agency’s discretion and cannot be challenged in court. This includes, for example, the government’s implied discretion to not conduct immigration enforcement, as well as its specifically unreviewable power over initiating and adjudicating removal proceedings as well as executing removal orders, as laid out in 8 USC § 1252(b)(9) & (g). The government cited both these specific statutes as well as its understood power of non-enforcement in arguing that the dissolution of DACA was not subject to court review because it was, fundamentally, a matter of agency discretion.
Provided any agency action is reviewable, the action also must conform to proper procedure as laid out in the Administrative Procedure Act (APA). Broadly speaking, this requires that there be a clear and substantive basis for an administrative decision, including not only why it was necessary and appropriate to take action but also why the specific action it took was the correct course. This can involve, among other things, explaining why alternative actions were inappropriate, issuing proper public notice, and taking into account the practical impact of the decision, including whether it will cause undue harm. If a decision fails to meet this standard, it can be considered arbitrary and capricious decision-making, and is unlawful. The court may not substitute its own judgement for the agency’s, but it must ensure that the agency went through the proper process.
What set off this attempt to terminate DACA was a memo written by former Attorney General Jeff Sessions in September 2017, which advised Acting Secretary of Homeland Security Elaine Duke that DACA was likely to be struck down by the courts as unlawful and the agency should rescind the program. Sessions based this assessment on the Fifth Circuit’s ruling against the Deferred Action for Parents of Americans (DAPA) program, a separate though somewhat similar initiative to provide protections for the parents of U.S. citizens and permanent residents; this ruling was left unchanged by an even 4-4 split on the Supreme Court. He claimed DACA had the same legal deficiencies and should be wound down.
As this Supreme Court decision notes, the Secretary of Homeland Security is statutorily obligated to act on the Attorney General’s legal recommendations, so Duke responded by drafting a memo agreeing that the program should be terminated and laying out a method and timeline to do so. Almost immediately, several parties including DACA recipients, states, and the Regents of the University of California, filed suit in three different districts, claiming that the order violated both the APA and constitutional equal protection principles. The latter claim argued that the decision was motivated by racial animus given the president’s many disparaging statements. The suits resulted in injunctions stopping the DACA from being terminated and allowing recipients to continue reapplying for the program, though no new applications could be filed.
While all three courts agreed that the APA had been violated, the D.C. District Court allowed DHS to reissue a rescission order that would comply. Secretary Kirstjen Nielsen, who by that point had succeeded Duke, declined to fully reissue the order but instead expanded on Duke’s memo with additional reasons why the government felt DACA was unlawful and wanted to terminate it. The government has also consistently argued the question is unreviewable anyway, for the reasons mentioned above.
The cases were consolidated and brought before the Supreme Court, which ruled 5-4 against the government. First of all, Chief Justice John Roberts, writing for the majority, rejected the notion that the court couldn’t review the decision for the simple reason that a large, actively managed program that took applications and granted benefits was materially distinct from individual decisions to initiate or not initiate deportation proceedings, which indeed would be unreviewable. Upon review, the court also found that the decision itself was arbitrary and capricious, and so violated the APA.
That finding essentially boils down to the fact that, when provided with the advice that DACA was unlawful, Duke chose to terminate it completely, and do so quickly. Roberts rejects the plaintiffs’ contention that Duke should have laid out a better legal case because ultimately she was acting on the findings of the Attorney General and, again, whether his analysis on DACA’s legality was correct or not is not at issue in this case. What does come into play are the reasons that Sessions gave, namely that, as was the case with DAPA, conferring Medicare and Social Security benefits and work authorization to recipients was unlawful.
Therefore, Roberts reasons, Duke could have addressed these supposed legal defects by simply modifying the program to eliminate these benefits, while retaining what they viewed as its core: protection from deportation. Consequently, there was no need to eliminate DACA altogether even taking Sessions’ determination at face value. The majority refused to take into account Nielsen’s subsequent memo, as this was seen as unacceptable post hoc reasoning which was unnecessary to examine the initial decision to wind down the program.
The majority also determined that the administration failed to consider recipients’ reliance on DACA, and how a rescission might upend their lives. While it stresses that such a consideration would not have necessarily changed the ultimate order, it’s still required to take these reliance interests into account, and in doing so may have, for example, institute different timelines for recipients who were participating in military service or medical treatment. By not even discussing how these downstream impacts of the sudden end of the program, the decision was arbitrary.
On the equal protection argument, Justice Sotomayor agreed with the plaintiffs while the rest of the majority rejected the claims. Justices Alito, Kavanaugh, Thomas, and Gorsuch all dissented from the majority. The case is now remanded to the Department of Homeland Security, which must decide how to proceed.
How we got here
DACA was a stopgap. Before President Obama created the program via executive order in 2012, Congress had repeatedly voted on various iterations of the DREAM Act, a bill that would have granted legal status to certain undocumented immigrants brought to the U.S. as children.
First introduced in 2001, the Development, Relief and Education for Alien Minors Act had a surprising sponsor: then-Senator Orrin Hatch. Though it didn’t garner much bipartisan support in 2001, an amended version of the bill was reintroduced in 2007; the bill failed to surpass the 60 votes needed to avoid a filibuster. A bipartisan group of senators reintroduced the bill again in 2009 with an additional set of changes and, once again, got fewer than 60 votes. Obama called the vote “incredibly disappointing” and blamed the bill’s failure on “a minority of senators [who] prevented the Senate from doing what most Americans understand is best for the country.” (A Gallup poll at the time found that 54% of Americans supported the DREAM Act.)
The fight for the DREAM Act revealed the Obama administration’s competing priorities when it came to immigration: on the one hand, the administration was advocating for the rights of immigrants brought to the country as children, many of whom had no memory of their life outside the U.S.; on the other hand, it was often deporting their parents. Deportations rose to record highs during Obama’s first term. “No matter how decent they are, no matter their reasons, the 11 million who broke these laws should be held accountable,” Obama said of undocumented immigrant in 2010. The DREAM Act was undoubtedly an amnesty bill — unlike DACA, it would have provided a path to citizenship for a share of the undocumented population — set against the backdrop of increased enforcement. (This is often the case for amnesty bills; the Immigration Reform and Control Act of 1986, for example, simultaneously imposed new penalties on companies that knowingly hired undocumented immigrants and provided legal status to millions of people.)
Still, the DREAM Act’s detractors — mostly Republicans and a few conservative Democrats — characterized the bill (and the Obama administration) as being too lenient. Jeff Sessions, at the time a senator representing Alabama, called it a “reward for illegal activity.”
Without the DREAM Act, deportations of young immigrants continued, prompting protests at Obama reelection campaign field offices in 2012. Obama issued DACA in response to these protests. While it is often described as an executive order, in reality it was a memo issued by then-Homeland Security Secretary Janet Napolitano at Obama’s direction.
In order to ensure DACA’s legality, White House counsel and DHS lawyers said at the time, each application would have to be considered on a case-by-case basis. DACA was by no means blanket protection: about 800,000 of the estimated 11 million undocumented immigrants in the U.S. qualified, and applicants had to meet certain residency, educational, and criminal requirements in order to qualify. In effect, DACA let undocumented youth live and work in the U.S. without fearing deportation, but it also kept them in a sort of legal limbo. Republican legislators and restrictionist groups like NumbersUSA characterized DACA as a “backdoor to amnesty,” as NPR wrote at the time. (NumbersUSA also bankrolled a lawsuit filed by 10 ICE agents who said DACA was forcing them to break federal law. A judge eventually dismissed the lawsuit, citing lack of subject matter jurisdiction.)
Two years later, the Obama administration announced a new program called Deferred Action for Parents of Americans (DAPA). It was swiftly challenged in court: 26 Republican-led states filed a lawsuit against DAPA, which has been enjoined since 2015. (The Supreme Court effectively upheld the injunction in 2016.) The administration also attempted to expand DACA and was similarly stymied by the courts.
The Trump administration announced its plan to end DACA in 2017. He reportedly “wrestled for months” over the decision and was ultimately persuaded to end the program by Sessions, who was serving as Attorney General at the time and who told Trump it was Congress’ responsibility to write immigration laws. Trump and Sessions’ insistence that the executive branch not usurp Congress authority on immigration policy is, in retrospect, laughable. Congress hasn’t passed a single immigration law since Trump took office, and the administration’s signature immigration policies — the travel bans, family separation, Remain in Mexico, and ceaseless attacks on asylum — have all been the result of administrative changes or executive order.
But that was the rationale for ending DACA, and Trump gave Congress six months to come up with a solution that could save it by enshrining its protections into law. (Duke’s memo ending DACA was ultimately issued two days after Trump’s announcement.) The University of California sued the Trump administration shortly afterwards, as did 15 states and Washington, DC. (Notably, UC president Janet Napolitano had issued the original DACA memo.) As we noted above, the lawsuits didn’t focus on the legality of DACA or even on the president’s ability to end the program, but rather on whether the methods through which the administration tried to end DACA were legitimate.
What’s next?
As we’ve stressed a few times already, the court has made no determinations as to the legality of the original DACA program (the expansion has been stopped, as we mentioned), meaning that legally it’s still an open question that can be litigated in court. A lawsuit by the State of Texas is seeking to have the program overturned completely, and that case is moving forward.
Further, while the SCOTUS decision prevented the administration from terminating DACA, it also practically provided it with a detailed roadmap for how it could do so in the future in compliance with the APA. In the order, Roberts wrote that the “appropriate recourse is therefore to remand to DHS so that it may consider the problem anew,” all but inviting DHS to take another bite at the apple. This morning, Trump tweeted that the administration will be taking action “shortly.”
That said, it’s relatively unlikely that the administration will try to go down this road during an election year and when their own ICE personnel are indicating that it’s a headache not worth having. DACA remains broadly popular among the U.S. population and the administration obviously has bigger fish to fry as the pandemic continues raging around the country. (For a detailed look at how the administration could erode away at DACA without ending it altogether, we suggest reading this thread by New Yorker writer Jonathan Blitzer.)
Beyond allowing recipients to maintain and extend their status, one potential outcome of this decision is permitting new applications once again. While this isn’t explicitly addressed in the decision, it does affirm the D.C. Circuit Court’s decision in Trump v.NAACP, which should return the program to the status quo of accepting new applicants. The Migration Policy Institute estimated that there were about 66,000 people who became eligible for DACA while new applications were stopped, and could apply now.
Under the Radar
State and local governments’ role in resisting — and enabling — ICE cooperation continues
In addition to its DACA decision this week, the Supreme Court also refused to hear a case against California’s “sanctuary state” policies. The Trump administration had asked the court to review a federal appeals court’s support of a state law forbidding local law enforcement agencies from cooperating with ICE. The law, called the California Values Act, has provisions barring local jails and prisons for honoring ICE detainers, requests for people to be held for up to an additional 48 hours after they’re supposed to be released so they can be transferred to ICE custody. It also prevents local law enforcement from sharing information about people released from criminal custody with ICE.
Elsewhere in the country, municipal governments are also limiting their cooperation with ICE. As our Felipe De La Hoz reported for The Appeal, the local agency overseeing the jail in Prince William County, Virginia voted to end its participation in ICE’s 287(g) program this week. The vote was the result of 13 years of organizing against the program, which essentially deputizes local law enforcement on behalf of ICE. Proponents have described these agreements, created under the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, as a “force multiplier” that lets ICE expand its reach and arrest immigrants it may not otherwise have access to. They’ve become particularly contentious under the Trump administration, and while some municipalities have opted to end their collaboration with ICE, others have doubled down. This week, Tarrant County, Texas voted to extend its own ICE partnership.
Next Destination
Trump administration to deny work permits to most asylum seekers
The Trump administration plans on issuing a final rule affecting asylum seekers’ ability to work in the United States while their cases are decided, BuzzFeed News reports. The rule will disqualify any asylum seekers who enter the U.S. unofficially — that is, by crossing between ports of entry — from work permits altogether. It will also deny permits to people who file claims more than one year after arriving in the United States. Those who still qualify will have to wait a full year before obtaining a work permit, up from 150 days under current regulations.
Along with the administration’s prior attacks on asylum, including the massive rule proposed last week that would all but eliminate migrants’ ability to seek refuge in the U.S., this latest rule is likely meant to deter would-be asylum seekers by making life more difficult for those who are already here. The rule doesn’t appear to have a coronavirus-related rationale, as it was first introduced in August. Its effect on asylum seekers could be devastating: asylum cases, especially those for people who aren’t detained, can take more than a year to complete, and asylum seekers generally don’t qualify for financial assistance or other government benefits.