Supreme Court Seems Ready To Let Trump End DACA.

Source – forbes.com

The Supreme Court heard oral arguments today on President Trump’s revocation of “Deferred Action for Childhood Arrivals” (DACA). DACA has spared nearly 800,000 undocumented immigrants from deportation. Nearly forty percent of DACA recipients are currently enrolled in a k-12 school or college, but will face possible deportation if the Court rules in favor of the Trump Administration.

Under DACA, undocumented immigrants who came into the country as minors, who have otherwise obeyed the law, and have stayed in school or served in the military can apply to receive a renewable two-year period of deferred action from deportation and can become eligible for work permits. In 2012, when the DREAM Act couldn’t get through Congress, President Obama used his executive authority to create the program. President Trump now wants to use his executive authority to get rid of it.

Normally that would be easy. If Obama can create DACA with the wave of a pen, his successor can reverse him with a second wave of a pen. But nothing is normal in the Trump administration. Numerous lawsuits were brought to save DACA including one by Janet Napolitano. She was Obama’s Secretary of Homeland Defense and is the current President of the University of California system so she is ideally situated to argue that revoking DACA is unnecessary for homeland defense and greatly harmful to DACA students. (California has by far the largest number of DACA students.) The federal judge in that case agreed and enjoined the Trump administration from revoking DACA. Subsequently, two other federal judges ruled the same way.

The Trump administration urged the Supreme Court to hear the case on an expedited basis but it refused. A federal appellate court upheld the injunction against revoking DACA and the case was finally argued before the Supreme Court on Tuesday. The main issue is whether Trump’s revocation of DACA violates the Administrative Procedure Act because the revocation is “arbitrary and capricious.” Normally, Presidents easily meet the standard of not being arbitrary and capricious because it merely requires that they put forward some coherent reason for their actions. But Trump has done the opposite. For example, he has tweeted: “Does anybody really want to throw out good, educated and accomplished young people who have jobs, some serving in the military? Really!”

The federal judge who first refused to let Trump revoke DACA ruled that such tweets showed that the President did not actually believe that revoking DACA served the national interest. Furthermore, Trump has repeatedly implied that revoking DACA is intended as a bargaining chip to wring concessions out of Democrats such as funding for the border wall. For example, he has tweeted that even if the Supreme Court allows him to revoke DACA: “a deal will be made with Dems for them to stay!”

However, things did not look promising for DACA recipients during oral argument at the Supreme Court. On the positive side Justice Sonia Sotomayor appeared sympathetic to their argument, suggesting that Trump behaved capriciously by “telling DACA eligible people that they were safe under him that that he would find a way to keep them here.” Ted Olsen, the highly respected attorney representing the DACA recipients’ position, tried to capitalize on that sentiment by arguing that it was wrong for the government to have invited DACA recipients into the program, thereby identifying themselves and making themselves easier to deport. However, Chief Justice John Roberts, whose vote would likely be needed to save DACA, seemed unpersuaded. He stated during oral argument that deportation of so many people is unlikely and that the real consequence of revoking DACA would be the end of work authorizations.

Olsen did not fare any better with the most conservative Justices such as Trump appointees Neil Gorsuch and Brett Kavanaugh. Gorsuch did say: “I hear a lot of facts, sympathetic facts, and they speak to all of us.” But he also asked: “What good would another five years of litigation … serve?” Justice Kavanaugh suggested that Trump’s revocation of DACA was indeed a “considered decision.”

Of course, Justice’s comments during oral arguments are very imperfect predictors of how they will vote. For example, during oral argument in a previous case challenging the addition of a question on citizenship to the census, Justice Roberts seemed sympathetic to the Trump administration’s position. In the end though, Roberts voted to disallow the citizenship question due to doubts about the Trump Administration’s truthfulness in explaining why it was adding the question. Quoting his old boss, Judge Henry Friendly, Roberts wrote, “Our review is deferential, but we are ‘not required to exhibit a naivete from which ordinary citizens are free.'” DACA recipients will have to hope that Roberts’ view of the DACA case is similarly skeptical of the Trump administration’s motives.