New York Times: Supreme Court Appears Ready to Let Trump End DACA Program

The justices are considering whether the Trump administration can shut down a program that shields about 700,000 young immigrants from deportation.

A rally in support of the Deferred Action for Childhood Arrivals program, or DACA, outside the Supreme Court in Washington on Tuesday.
A rally in support of the Deferred Action for Childhood Arrivals program, or DACA, outside the Supreme Court in Washington on Tuesday.Credit…Erin Schaff/The New York Times
Adam Liptak

By Adam Liptak

WASHINGTON — The Supreme Court’s conservative majority on Tuesday appeared ready to side with the Trump administration in its efforts to shut down a program protecting about 700,000 young immigrants known as “Dreamers.”

The court’s liberal justices probed the administration’s justifications for ending the program, expressing skepticism about its rationales for doing so. But other justices indicated that they would not second-guess the administration’s reasoning and, in any event, considered its explanations sufficient.

Still, there was agreement among the justices that the young people who signed up for Deferred Action for Childhood Arrivals, or DACA, were sympathetic and that they and their families, schools and employers had relied on it in good faith.

The arguments in the case, one of the most important of the term, addressed presidential power over immigration, a signature issue for President Trump and a divisive one, especially as it has played out in the debate over DACA, a program that has broad, bipartisan support.

The program, announced by President Barack Obama in 2012, allows young people brought to the United States as children to apply for a temporary status that shields them from deportation and allows them to work. The status lasts for two years and is renewable, but it does not provide a path to citizenship.

In the past, Mr. Trump has praised the program’s goals and suggested he wanted to preserve it. “Does anybody really want to throw out good, educated and accomplished young people who have jobs, some serving in the military?” he asked in a 2017 Twitter post.

But as the court took up its future on Tuesday, Mr. Trump struck a different tone. “Many of the people in DACA, no longer very young, are far from ‘angels,’” he wrote on Twitter. “Some are very tough, hardened criminals.”

In fact, the program has strict requirements. To be eligible for DACA status, applicants had to show that they had committed no serious crimes, had arrived in the United States before they turned 16 and were no older than 30, had lived in the United States for at least the previous five years, and were a high school graduate or a veteran.

Justice Sonia Sotomayor said the DACA recipients were justified in relying on Mr. Trump’s earlier statements, which she paraphrased. “They were safe under him,” she said, “and he would find a way to keep them here.”

The roots of the decision to shut down the program figured in the argument, as the justices parsed two sets of rationales from successive heads of the Department of Homeland Security.

After contentious debates among his aides, Mr. Trump announced in September 2017 that he would wind down the program. He gave only a single reason for doing so, saying that creating or maintaining the program was beyond the legal power of any president.

“I do not favor punishing children,” Mr. Trump said in his formal announcement of the termination. But, he added, “the program is unlawful and unconstitutional and cannot be successfully defended in court.”

That decision was reflected in bare-bones memo from Elaine C. Duke, then the acting secretary of homeland security. She offered no policy reasons for the move.

Theodore B. Olson, a lawyer for the DACA recipients, said the memo allowed the administration to avoid taking political heat on the issue. “The administration did not want to own the decision,” he said.

Solicitor General Noel J. Francisco, arguing for the administration, disagreed. “We own it,” he said.

Mr. Francisco pointed to a second memo, issued last year by Kirstjen Nielsen, the homeland security secretary at the time. It mostly relied on the earlier rationales in Ms. Duke’s memo, but added one more, about the importance of projecting a message “that leaves no doubt regarding the clear, consistent and transparent enforcement of the immigration laws against all classes and categories of aliens.”

That policy justification, Mr. Francisco said, was sufficient even if the administration was mistaken in its legal rationale.

Mr. Olson disagreed. “You have to have a rational explanation,” he said. “It must make sense. It must be contemporaneous.”

Michael J. Mongan, California’s solicitor general, who argued in favor of the program, called Ms. Nielsen’s new rationale “boilerplate.”

The Trump administration’s argument that the program was unlawful was based on a 2015 ruling from the United States Court of Appeals for the Fifth Circuit, in New Orleans. But that decision concerned a different, much larger program. Lower courts have ruled that the two programs differed in important ways, undermining the administration’s legal analysis.

Justice Ruth Bader Ginsburg said on Tuesday that it was impossible to disentangle the administration’s legal rationale from its later policy justification. “We don’t know how she would respond,” Justice Ginsburg said of Ms. Nielsen, “if there were a clear recognition that there is nothing illegal about DACA.”

The justices have examined the Trump administration’s justifications for its initiatives on immigration in other cases.

In 2018, the court upheld Mr. Trump’s order limiting travel from several predominantly Muslim nations, relying on the justifications set out in a presidential proclamation and refusing to consider statements from Mr. Trump concerning his desire to impose a “Muslim ban.”

In June, however, the Supreme Court rejected the administration’s rationale for adding a citizenship question to the census. “The sole stated reason” for adding the question, Chief Justice John G. Roberts Jr. wrote for the majority, “seems to have been contrived.”

In a Supreme Court brief, the administration said the DACA cases, including the Department of Homeland Security v. Regents of the University of California, No. 18-587, were different.

“The courts below erred,” the brief said, “in second-guessing D.H.S.’s entirely rational judgment to stop facilitating ongoing violations of federal law on a massive scale.”

On Tuesday, the justices frequently referred to the DACA recipients themselves. “I hear a lot of facts, sympathetic facts, that you’ve put out there, and they speak to all of us,” Justice Neil M. Gorsuch told Mr. Olson.

But Justice Gorsuch said he had doubts about whether it was the role of the Supreme Court to review the administration’s decision to terminate the program.

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