In a 5-4 decision, the U.S. Supreme Court ruled on the DACA controversy involving so-called undocumented Dreamers. If you look at the national headlines, it would appear that the Trump administration was dealt a mortal blow.
The old guard legacy newspapers like The New York Times and The Washington Post immediately put up headlines that indicated the SCOTUS decision was “against Trump’s attempt to end DACA.” However, it seems that the decision is a very nuanced one that can’t just be checked off in a won/lost column for either side.
So we turn to Liberty Nation’s Legal Affairs Editor Scott Cosenza, Esq. for an explanation of this decision.
Leesa K. Donner: Let’s begin with the essence of the case, which should have a straightforward answer, but it doesn’t because the Supreme Court’s decision revolved around several DACA cases, correct?
Scott Cosenza: There were eight lower court cases finally consolidated into this one, and there are five separate published opinions today, and yet still no answer on the fundamental question: Can the administration revoke the DACA program? Justice Alito wrote:
“In November 2018, the Solicitor General filed petitions for certiorari, and today, the Court still does not resolve the question of DACA’s rescission. Instead, it tells the Department of Homeland Security to go back and try again. What this means is that the Federal Judiciary, without holding that DACA cannot be rescinded, has prevented that from occurring during an entire Presidential term.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.”
LKD: So then the headlines found all over the U.S. today don’t tell the real story. Shocker. However, as far as you can tell, what is the upshot of this case? Are the justices telling the Trump administration to go back and start over?
SC: The part of the ruling that five Justices agree on is simply that the administration did not dot all the i’s and cross its t’s in the way it went about eliminating the DACA program. The ruling suggests that if DHS did do those things, the actions would pass constitutional muster, but that is far from a given.
There were two principle claims advanced, one on equal protection and the other based on the Administrative Procedure Act (APA). The APA argument succeeded, but the equal protection claims failed by 8-1. That was an attempt to prove DACA’s rescission was motivated by racial animus in violation of the equal protection guarantee of the Fifth Amendment. Justice Sotomayor was the lone jurist who disagreed with the rest – she would like to see more litigation on this point.
LKD: Have they given any specific instructions to the Trump administration about what to do, or is this decision so convoluted that DACA will remain up in the air for the foreseeable future?
SC: As silly as it may sound, the Court’s ruling seems only to require that the Department of Homeland Security release statements indicating they undertook “reasoned analysis” to consider keeping the plan and that it discussed whether there was “legitimate reliance” by DACA recipients on the plan.
Keep in mind, the Obama administration simply invented DACA with a memorandum. There was no authorizing legislation. In the wake of congressional inaction on the issue, President Obama simply ordered his agency employees to act under the terms of his memo, called DACA. As Justice Thomas states, “the Trump administration rescinded DACA the same way that the Obama administration created it: unilaterally, and through a mere memorandum.” Thomas was most critical of the Court’s opinion, and wrote in his dissent:
“Under the auspices of today’s decision, administrations can bind their successors by unlawfully adopting significant legal changes through Executive Branch agency memoranda. Even if the agency lacked authority to effectuate the changes, the changes cannot be undone by the same agency in a successor administration unless the successor provides sufficient policy justifications to the satisfaction of this Court. In other words, the majority erroneously holds that the agency is not only permitted, but required, to continue administering unlawful programs that it inherited from a previous administration.”
LKD: We all remember when President Trump offered an olive branch to the Democrats on DACA; they rejected it, and then House Speaker Nancy Pelosi (D-CA) had to endure protests from her own people. What happens now, Scott? And more importantly, what happens to these people?
SC: If President Trump still wishes to eliminate DACA, he can do so, presumably, by jumping through the various administration law hoops the APA specifies. That would mean new renewal applicants (DACA applicants have to re-apply every two years) would be denied, starting right after the various administrative requirements have been met. If that happens, the former DACA recipients are in the same boat as they were before President Obama decided to create the program: They are illegal immigrants subject to removal.
I suspect that if the administration does move to withdrawal DACA consistent with the new ruling, we will see more litigation tying up the process again, and potentially for years to come. We know that many district court judges sadly give little pause when it comes to imposing broad injunctions against this administration, and there doesn’t seem to be any change in that regard. The Court has left the country with a mess that won’t be cleaned up soon.