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SCOTUS Analysis: A preview of DACA

Polly J. Price |
Polly J. Price
Asa Griggs Candler Professor of Law

The Obama-era program known as “Deferred Action for Childhood Arrivals” (DACA) loomed large over the term just completed, as the justices took no action on four unusual petitions by the U.S. solicitor general asking the court to review lower court decisions blocking the government from terminating the DACA program. But then on the last day of the term, the justices surprised many by agreeing to take up DACA, setting in motion for next year the highly anticipated argument over immigration policy and presidential authority left hanging three years ago with the court’s 4-4 split in a related case, United States v. Texas, 136 S. Ct. 2271 (2016).

Created through executive action by President Barack Obama in 2012, the DACA program provides a temporary reprieve from immediate deportation for an estimated 800,000 youth brought illegally to the U.S. as children. For those who qualify, DACA recipients can receive work authorization and can renew their status every two years. President Donald Trump announced his intent to end the program in September 2017. In early 2018, federal district courts in California, New York and the District of Columbia issued nationwide injunctions prohibiting the Department of Homeland Security from rescinding the program. Since that time, the 4th and 9th Circuits have weighed in, leaving the injunctions in place. Both courts recognized that the executive branch has broad authority to alter the policies of earlier administrations, but in doing so must satisfy the requirements of the Administrative Procedure Act. (Foreshadowing in some respects the court’s 5-4 decision on the census citizenship question this term—policy changes may be permissible under the relevant statute, but the government nonetheless has to follow the rules about making rules contained in the Administrative Procedure Act.)

On the other hand, the Trump administration argues that the DACA program itself was an unconstitutional exercise of executive authority. In support it cites a decision from the 5th Circuit that ended a related program, “Deferred Action for Parents of Americans and Lawful Permanent Residents” (DAPA), an expansion of DACA announced by President Obama in 2014. DAPA never went into effect, and the Supreme Court’s 4-4 split decision after Justice Scalia’s death left intact a nationwide injunction against the DAPA program. The 9th Circuit said that the two programs were different in important ways. The two issues set for briefing are (1) whether the Department of Homeland Security’s decision to rescind DACA is judicially reviewable; and (2) whether DHS’s decision to rescind the DACA policy is lawful.

The cases are set for argument on Nov. 12, meaning a decision will be pending for the better part of a presidential election year. That is, unless a legislative solution intervenes. President Trump urged Congress to address the plight of the Dreamers, dictating a six-month deadline that came and went by early 2018. Several forms of the DREAM Act, first introduced in 2001, have passed in the House. In 2010, a majority in the Senate supported the DREAM Act but fell five votes short of overcoming a filibuster, with a final tally of 55-41. Congress will be even less likely to act while the DACA case is pending in the Supreme Court, much as the Justices might prefer it to resolve the issue.

The cases are: Department of Homeland Security v. Regents of the University of California, No. 18-587, consolidated with Trump v. NAACP, No. 18-588, and McAleenan v. Vidal, No. 18-589.