SCOTUS: DACA Cannot Be Ended, Yet

Article CAIRCO note: 
The chickenhearted ruling pushes the DACA issue past the 2020 election
Article publisher: 
Center for Immigration Studies
Article date: 
18 June 2020
Article category: 
National News
Article Body: 

... today's ruling by the Supreme Court of the United States in Department of Homeland Security v. Regents of the University of California. The high court held that the Department of Homeland Security acted unlawfully in terminating the Deferred Action for Childhood Arrivals (DACA) program. The majority ruled there was no discriminatory intent on the part of the executive, but that the DHS memorandum that rescinded DACA "failed to consider the conspicuous issues of whether to retain forbearance and what if anything to do about the hardship to DACA recipients.”...

Andrew Arthur, the Center's resident fellow in law and policy, said, "Today’s decision must be recognized for what it is: an effort to avoid a politically controversial but legally correct decision. The Court could have made clear that the solution respondents seek must come from the legislative branch. Instead, the majority has decided to prolong DHS’ initial overreach by providing a stopgap measure of its own. In doing so, it has given the green light for future political battles to be fought in this Court rather than where they rightfully belong—the political branches. Such timidity forsakes the Court's duty to apply the law according to neutral principles, and the ripple effects of the majority's error will be felt throughout our system of self-government."


The Supreme Court Requires Trump to Violate Immigration Law, by Dan McLaughlin, National Review, June 18, 2020.

The Supreme Court’s Convoluted Reasoning in the DACA Case, by Kris. W. Kobach, Breitbart, June 19, 2020.

The DACA Disgrace: Judicial Nominees Must Now Face An Immigration Litmus Test, VDare, June 19, 2020.

Time for Trump and conservatives to crush judicial supremacy: Here's how, by Daniel Horowitz, Conservative Review, June 18, 2020:

The same tactic should have been used with the census. A census is not written by the judiciary; it’s written by the Department of Commerce. The administration has every right to place a citizenship question on the form, and even Roberts in his insane opinion from last year agreed that it would be following the law. If individuals don’t want to fill it out and are subject to federal prosecution, then the courts could always decline to convict them. That is how separation of powers and decompartmentalism work.

The president has no choice. This is not just about amnesty. This is about everything he has done during his presidency. Whether it’s numerous other immigration policies, the census, or environmental and energy regulations, the courts are mandating a continuation of Obama’s presidency. They are saying that Trump cannot get rid of anything Obama did unilaterally.

Thus, unless Trump and Republicans promise to do as Lincoln did and push back against judicial supremacism, there is no purpose to running for re-election. And no, don’t tell me the purpose is to “appoint better judges.” Sorry, Mr. President, but this just won’t cut it...

It’s not Trump’s fault that on his watch the judicial civil disobedience to our laws, Constitution, sovereignty, and natural rights reached a fever pitch and a breaking point. But it will be his fault if, on his watch, he did not rise to the challenge and respond appropriately. We have no other choice.

Let's Not Forget That a Whole New DACA Generation Is Waiting in the Wings - Probably a million children soon enough will be seen and heard, by Todd Bensman, Center for Immigration Studies, May 22, 2020.

Supreme Court Protects Illegal Aliens at the Expense of the Constitution, FrontPage Mag, June 19, 2020.

SCOTUS rules DACA can stay, for now, NumbersUSA, June 18, 2020.

The Supreme Court has ruled against President Trump in a set of cases over his effort to end the Obama-era executive order known as Deferred Action for Childhood Arrivals, or DACA.

The 5-4 opinion was authored by Chief Justice John Roberts who was joined by the court’s four liberals. Roberts reasoned that the Trump administration’s termination of the program was “arbitrary and capricious,” in violation of federal law that governs administrative procedure. Justice Roberts stated, "We do not decide whether DACA or its rescission are sound policies. 'The wisdom' of those decisions 'is none of our concern.'" Roberts expanded on this idea in his majority opinion:

The Fifth Circuit, the highest court to offer a reasoned opinion on DAPA’s legality, found that DAPA violated the INA because it ex-tended eligibility for benefits to a class of unauthorized aliens. But the defining feature of DAPA (and DACA) is DHS’s decision to defer removal, and the Fifth Circuit carefully distinguished that forbearance component from the associated benefits eligibility. Eliminating benefits eligibility while continuing forbearance thus remained squarely within Duke’s discretion. Yet, rather than addressing forbearance in her decision, Duke treated the Attorney General’s conclusion regarding the illegality of benefits as sufficient to rescind both benefits and forbearance, without explanation. That reasoning repeated the error in Motor Vehicle Manufacturers Association of the United States, Inc. v. State Farm— treating a rationale that applied to only part of a policy as sufficient to rescind the entire policy.

Simply put, SCOTUS rejected the administration's attempt to end the executive order because the Acting Secretary of the Department of Homeland Security at the time, Elaine Duke, an Obama Appointee, justified the decision to end DACA using solely the benefits argument. Justice Roberts ruled that DACA is by its nature both a benefit AND protection from deportation, so the government, in Robert's opinion, had to argue against both aspects in order to fully end the program.



The ruling will protect hundreds of thousands of young aliens who have been shielded from deportation and allowed to receive work permits under the "executive branch memorandum." There were about 700,000 DACA recipients at the time the Trump Administration ordered the program to wind down in September 2017. As part of the Court's decision, the program will be reinstated with its 2012 parameters and the Government must begin accepting new applications.

Justice Thomas, who wrote the dissenting opinion joining with Justices Alito, Gorsuch, and Kavanaugh explained what he found most incongruent about the Court's majority opinion: "To state it plainly, the Trump administration rescinded DACA the same way that the Obama administration created it: unilaterally, and through a mere memorandum." Justice Thomas continued:

DHS created DACA during the Obama administration without any statutory authorization and without going through the requisite rulemaking process. As a result, the program was unlawful from its inception. The majority does not even attempt to explain why a court has the authority to scrutinize an agency’s policy reasons for rescinding an unlawful program under the arbitrary and capricious microscope. The decision to countermand an unlawful agency action is clearly reasonable. So long as the agency’s determination of illegality is sound, our review should be at an end.

NumbersUSA's Director of Government Relations, Rosemary Jenks stated on the decision:

NumbersUSA is disappointed that the majority opinion on DACA failed to consider what Justice Thomas rightly concluded: DACA was an illegal use of executive authority from the start. Clearly, an illegal policy must be reversed in order to restore the rule of law. The Court’s decision to require the administration to jump through additional procedural hoops to terminate an unlawful program that was created without jumping through those same hoops makes no sense.

A New Dred Scott Decision Immortalizing Bureaucracy, by Ken Masugi, American Greatness, June 19, 2020.