Thomas Gallatin / Nov. 12, 2019

Supreme Court to Decide DACA's Fate

Either way the justices rule, DACA will end unless Congress acts on immigration.

The Supreme Court is hearing arguments today over President Donald Trump’s decision to rescind Barack Obama’s Deferred Action for Childhood Arrivals (DACA) program. Back in 2012, Obama was unable to get legislation passed that would have granted legal status to so-called Dreamers — children brought to the U.S. illegally by their parents. So, despite having repeatedly asserted he had no power to act unilaterally, he went around Congress to unilaterally enact DACA via an edict from then-Department of Homeland Security Secretary Janet Napolitano. In September 2017, Trump ordered the DACA program rescinded over the ensuing six months, giving Congress time to come up with a legislative solution for Dreamers. Trump’s decision was clearly an attempt to pressure Congress to act on immigration reform, including funding his border wall.

However, lower courts populated with Obama judges were able to derail those plans by issuing injunctions, and now the issue is before the Supreme Court. To clarify, the justices will not be ruling on the legality of DACA itself; rather the question is whether the Trump administration followed the proper protocols when rescinding DACA. In other words, the issue is one of procedure, yet the ramifications for the DACA program — and constitutional Rule of Law itself — are immense.

The Trump administration’s argument in defense of rescinding DACA boils down to the program having been illegally implemented from the start. Trump officials insist that ending an illegally enacted program should not be subject to the same rules and protocols for rescinding or changing a program that was legally instituted. Why apply the rules to rescind a program — rules that mandate a public notice and a period for public comment — when that would merely extend the process of ending the illegal program by months or even years, all for a program that did not follow rules or protocols when it was first implemented?

Either way the Court rules, Trump will still have an opportunity to rescind DACA, thereby putting the ball of immigration reform back in Congress’s court. As the Washington Examiner’s Brad Polumbo notes, “The clear merits of DACA as policy aside, the answer to congressional incompetency is not an imperial presidency with the ability to re-write immigration law by executive fiat. So the conservative-majority Supreme Court would be well justified in striking down DACA as it stands. Critics may blast them for it, but they’re missing the point. The blame truly lies on Capitol Hill.” The Court is expect to issue its ruling early next summer.

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