ACE, 43 Other Associations Submit Amicus Brief Urging U.S. Supreme Court to Uphold the Legality of DACA
Published: October 04, 2019

The Deferred Action for Childhood Arrivals (DACA) policy “has made it newly possible for countless Dreamers to get a postsecondary education and unlock the potential such an education affords," says an amicus brief submitted today to the U.S. Supreme Court by ACE and 43 other higher education associations.

The ACE brief also emphasizes that “DACA has been a symbol of tolerance and openness of our university campuses." It warns that rescinding DACA would broadcast to other foreign-born students and potential students from around the globe a “message of exclusion" and would “irreparably damage the reputation of America's higher education system in the eyes of the world."

The Supreme Court is reviewing the Trump administration's decision to end the Obama-era DACA policy, which provides temporary legal status and protection from deportation for nearly 800,000 young people known as Dreamers, undocumented immigrants brought to the United States as children. Oral arguments are set for Nov. 12. The case involves a trio of related disputes, and ACE members Princeton University and University of California are among the parties.

The ACE brief was filed in support of lower court decisions that have kept DACA in place after the Trump administration's September 2017 rescission of the policy. DACA has enabled outstanding individuals to be productive members of society. They work, serve in the military, and attend college.

“Dreamers are Rhodes Scholars, scientists, and campus leaders; they are sources of inspiration and insight for their peers; and they are unparalleled ambassadors for our schools abroad. In the words of one college president, 'Dreamers set the bar very high academically, inspiring other students to reach higher as well.' Dreamers are also highly productive members of the Nation's economy, contributing over a quarter of a trillion dollars in economic growth, thanks in large part to their ability to earn an advanced education," states the brief, for which Neal Katyal of Hogan Lovells US LLP is lead counsel.

But if the Supreme Court allows the administration to end DACA all those gains would be reversed, the brief says.

“In an instant, it would send a message of exclusion that would irreparably harm our institutions' ability to recruit and retain foreign-born students. It would tear at the fabric of our campus communities. Most importantly, it would pull the rug out from under the Dreamers themselves, who have upended their lives—taking out loans, earning degrees, and taking the risk of revealing their undocumented status—in reliance on DACA. In the words of one DACA recipient, the rescission would mean that 'all the hard work I have put into my goals would be for nothing, and I would be back to the bottom where I started.'"

The ACE brief also speaks to significant legal issues regarding the government's contention that the executive branch's decision to rescind DACA is wholly exempt from judicial review. “Sanctioning that remarkable argument would threaten to immunize from legal scrutiny numerous other major decisions disguised as 'enforcement policies' that impact our higher education system," the brief says.

The ACE brief asks the Supreme Court to affirm the lower court judgments keeping DACA in place, saying that, “The Court should not write the Administration a blank check to make this monumental policy choice without even a patina of judicial review. DACA has been an unmitigated good for this country, its higher education system, and the young persons whom it has benefited."

DACA Background

President Obama established the DACA policy by executive action in June 2012. DACA allowed undocumented immigrants who arrived in the United States at a young age to become eligible for a work permit, a Social Security card, a driver's license, and deferred deportation. About 350,000 young people with DACA status are in school or pursuing higher education.

The Trump administration rescinded the policy Sept. 5, 2017, but delayed ending it until March 5, 2018. In granting a six-month delay, the president asked Congress to pass legislation to provide a permanent solution for those currently protected under DACA. Congress has not yet acted, but DACA in the years since has been kept alive by court decisions, leaving these individuals in political and legal limbo. 

In a statement when the Supreme Court took up the case, ACE President Ted Mitchell said it “only underscores the urgent need for Congress to act now to pass a long-term, bipartisan solution to protect Dreamers. Because it could easily be a year before we have a final decision by the Court, this is not an excuse for inaction by lawmakers." 

The House in June approved legislation—the American Dream and Promise Act (H.R. 6)—that would provide a long-term legislative fix for Dreamers, as well as those with Temporary Protected Status and Deferred Enforced Departure, who have seen their status rescinded and also live in uncertainty.

Earlier this year, Sens. Lindsey Graham (R-SC) and Dick Durbin (D-IL) reintroduced the bipartisan Dream Act of 2019 (S. 874), a bill that would allow many Dreamers to earn lawful permanent residence in the United States and a path to citizenship, but the Senate so far has failed to take action on either this or the House-passed bill.

Dreamers Advocacy Efforts

ACE sent a letter in June on behalf of 43 organizations to Majority Leader Mitch McConnell (R-KY) and Minority Leader Chuck Schumer (D-NY) requesting they make passage of legislation providing permanent protections for Dreamers a priority.

Most recently, more than 600 college and university presidents signed their institutions on to a letter sent to Capitol Hill Sept. 16, urging Congress to act now on protecting Dreamers, and not to wait for the Supreme Court to decide the issue. The letter, organized by ACE with assistance from a number of other higher education associations, urges lawmakers to “come together on a bipartisan basis to address this challenge by doing the right thing for these outstanding young people and for our country."

For more information on DACA and Dreamers, see the Protect Dreamers Higher Education Coalition webpage.

Note: Dreamers is shorthand for undocumented young people brought to the United States as children and raised as Americans, named for the DREAM (Development, Relief, and Education for Alien Minors) Act first introduced in Congress in 2001 but never enacted. Some—but not all—of these individuals have DACA status.