But even if DACA is struck down, it seems unlikely that its recipients will have to leave the country.
When Trump announced he would end DACA in 2017, he expressed sympathy for DACA recipients and said his cancellation of the program would force Democratic lawmakers to make a deal to allow the young people to stay.
June 2012 — Janet Napolitano, the secretary of Homeland Security under President Obama, issued a three-page memo announcing a policy of “exercising prosecutorial discretion with respect to individuals who came to the United States as children.” In most instances, “these individuals lacked the intent to violate the law” when they entered the country illegally, she said.
Various federal courts blocked the Trump administration from terminating DACA and ordered U.S. Citizenship and Immigration Services (USCIS) to keep taking applications from DACA recipients.
POLITICO
"This was a serious decision. We all agree with that," said Justice Brett Kavanaugh. "We can agree or disagree with the merits of it."
At issue in the case is whether the Trump administration followed federal law requiring agencies to base policy changes on sound reasoning that is explained to the public. Lower courts ruled that the decision to end DACA was "arbitrary and capricious" in violation of law.
Tuesday, the court's conservative members seemed inclined to overturn
Dreamers get little traction with Supreme Court’s conservative justices
Trump has decried the prior court rulings blocking his decision to rescind DACA.
Some liberal justices seemed to endorse Trump’s authority to shut down the program, but said he needed to embrace the consequences, rather than pawning them off on a disputed legal memo from Attorney General Jeff Sessions that concluded DACA was both illegal and unconstitutional.
“Where’s the political decision that was made that this not about the law, but about our choice to destroy lives?” Justice Sonia Sotomayor asked.
Near the end of the roughly 80-minute argument session, Solicitor General Noel Francisco seemed to take the liberal justices up on their invitation, declaring that the administration was prepared to accept the political consequences of its decision.
Francisco also said the courts have more power to look at policies limiting enforcement than those which step up enforcement, like ending DACA.
Francisco insisted ending DACA did not take away any benefits from recipients because the work permits expire every two years and would simply not be renewed under the Trump policy, which lower courts barred from taking effect. He also said that the courts should give only “extremely limited” weight to the way recipients, their families and employers have relied on the DACA policy because it was never an open-ended guarantee.
“These benefits are allowed to expire on their own, Francisco said. “I don’t think anyone could reasonably assume that DACA was going to remain in effect in perpetuity.”
Sotomayor scoffed at that notion.
“There's a whole lot of reliance interests that weren't looked at, including the…current President telling DACA-eligible people that they were safe under him and that he would find a way to keep them here,” she said. “And so he hasn't and, instead, he's done this.”
DACA backers were looking to Chief Justice John Roberts as a potential swing vote to reverse the Trump policy, in part because Roberts made a similar move in June when he joined the court’s four Democratic appointees to reject the Trump administration’s attempt to add a question about citizenship to the 2020 Census.
But there wasn’t much from Roberts Tuesday to give hope to DACA supporters. At one point, he argued that Obama’s policy was unprecedented, if not illegal, because the number of people affected was much larger than similar actions by past administrations.
“That history is not close to the number of people covered by DACA,” Roberts said
While DACA recipients have painted Trump’s revocation of the policy as opening them to deportation, Roberts emphasized that the program was not about lifting the threat of deportation, but about eligibility for benefits like permission to work legally in the U.S.
“The whole thing was about work authorization and various other benefits,” Roberts said. “Both administrations have said they are not going to deport the people.”
Several justices including Roberts suggested there was little point in sending the decision back to be made again, given the Trump administration’s commitment to ending the program.
However, lawyers backing the DACA program said Homeland Security officials might actually reach a different result if they had the decision to make over without an effective legal mandate created by Sessions’ opinion.
“We don't truly know what the agency would do if confronted with a discretionary choice,” said California Solicitor General Michael Mongan, representing states and local governments supporting DACA. “If they knew that DACA were lawful, there's a new Secretary, and the administration has expressed broad sympathy for this population, and they very well might continue the policy or stop short of wholesale termination.”
Several conservative justices compared the decision to end DACA to a tough-on-crime prosecutor deciding to revise guidelines his or her predecessor might have used about when to bring a drug case. Lawyers for DACA supporters acknowledged such a decision to step up enforcement would not be something to sue over.
“Every new attorney general establishes new enforcement priorities with respect to pornography or drug cases or things like that,” said Ted Olson, a solicitor general under President George W. Bush.
“That’s completely different than this,” Olson added, pointing to the individual grants of DACA status and the accompanying benefits.
Democrats contend that a legislative deal faltered early last year not because of the court decisions, but because conservative lawmakers and talk-show hosts pilloried the proposed compromise, prompting Trump to back away from the outlines of a package he had previously agreed to.
With DACA proponents urging that the issue be returned to the Department of Homeland Security for another decision, Justice Neil Gorsuch seemed to allude to the contention that the litigation over DACA was making it harder to reach a political resolution of the question.
“It would leave this class of persons under a continuing cloud of uncertainty and continue stasis in the political branches because they would not have a baseline rule of decision from this court, still, on this issue,” Gorsuch said.
Just before Tuesday’s arguments, Trump sent out a tweet that simultaneously painted DACA recipients as dangerous and promised to work out a way for Dreamers to remain in the U.S. even if his decision to end the program is upheld.
“Many of the people in DACA, no longer very young, are far from ‘angels,’” Trump wrote. “Some are very tough, hardened criminals. President Obama said he had no legal right to sign order, but would anyway. If Supreme Court remedies with overturn, a deal will be made with Dems for them to stay!”
No comments:
Post a Comment