DACA lands before Supreme Court


Whether the Trump administration can rescind a safe-haven program for the children of first-generation immigrants will soon be decided by the U.S. Supreme Court.

Faye Kolly

Justices on Nov. 12, 2019, heard oral arguments in the case of Regents of the University of California v. Department of Homeland Security, which centers on the legality of the Deferred Action for Childhood Arrivals (DACA) policy. The Obama-era initiative protects from deportation undocumented young people who came to the United States as children and allows them to obtain a driver’s license and a work permit, among other benefits. In 2017, the Department of Homeland Security (DHS) attempted to phase out DACA, which led to multiple lawsuits and an ongoing court battle over whether the policy should be overturned.

The DACA case before the court, which consolidates three legal challenges, revolves around two primary legal arguments, said Austin, Tex., attorney Faye Kolly, who coauthored a brief in support of DACA. The plaintiffs argue that the decision to rescind the DACA program was arbitrary and capricious under the Administrative Procedure Act (APA) because there was no justification to end the policy. The DHS’s rescission memorandum did not acknowledge, nor weigh, the profound interests and devastating consequences that would be caused by the rescission to hundreds of thousands of DACA recipients and countless stakeholders who rely on the program, attorneys for the University of California wrote in its brief to the Supreme Court.

The DHS contends the DACA policy itself is unlawful because the Obama administration lacked the statutory authority to launch such a program. The government’s decision to revoke the program was based on the legal and practical implications of maintaining DACA in light of concerns about its legality and ongoing litigation challenging similar programs, attorneys for the DHS wrote in a brief to the Supreme Court.

With a conservative majority on the court, analysts say the Trump administration may have an upper hand in the case. However, Ms. Kolly noted that Chief Justice John G. Roberts Jr. is the wild card to watch.

Although Chief Justice Roberts tends to lean more conservatively, he recently sided with the court’s liberal justices last term in a case involving citizenship, said Ms. Kolly. In that case, Department of Commerce v. New York, Chief Justice Roberts voted to block the Department of Commerce from reinstating a citizenship question on the 2020 Census. In the majority ruling, Justice Roberts wrote that the department’s reasons for reinstating the citizenship question were “incongruent with what the record reveals about the agency’s priorities and decision making.”

Considering that the government’s rationale to end DACA is a key piece to the DACA dispute, it’s possible that Chief Justice Roberts could apply a similar line of reasoning to the case, Ms. Kolly said.

“I think the court will look very closely [at whether] the arbitrary and capricious standard has been violated by the government,” she said in an interview. “I do think they will split along [ideological] lines, but the surprise vote may be Roberts.”

A number of physician and health care organizations have weighed in on the DACA case, including the American Medical Association, the Association of American Medical Colleges, and the American College of Obstetricians and Gynecologists. In a joint brief to the Supreme Court, the organizations wrote that an estimated 27,000 health care workers and support staff depend on DACA for their authorization to work in the United States, including nearly 200 medical students, residents, and physicians. If these physicians and trainees retain their work eligibility, each will care for an average of 1,533-4,600 patients a year, according to the brief.

“Together, over the course of their careers, they will touch the lives of 1.7 [million] to 5.1 million U.S. patients,” the groups wrote. “If DACA is rescinded, however, almost none of these people will be able to serve the American public in their chosen fields. This action would therefore nullify the substantial and long-term investments that DACA recipients, educational institutions, and the public have made in educating and training those recipients to provide needed health care services to the nation.”

More than 25 other individuals and organizations have also submitted briefs – either in support or in opposition – regarding the case. In their brief, attorneys for the Immigration Law Reform Institute, wrote that the DACA policy is void because it was issued in violation of APA notice-and-comment requirements “by virtue of its creating rights and cabining discretion in a sufficiently binding manner to exceed its mere enforcement-discretion justification.”

“DACA also violates the [Immigration and Naturalization Act] on both substantive and procedural grounds, and either sort of violation renders DACA a nullity,” the brief states.

In a Nov. 12 tweet, President Trump indicated that, if the Supreme Court strikes down DACA, he will consider working with Democrats on a legislative remedy that would protect current DACA recipients from deportation.

“Many of the people in DACA, no longer very young, are far from ‘angels,’ ” President Trump tweeted. “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!”

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