Supreme Court Hears Arguments on Legality of Trump Administration’s Move to End DACA
Published: November 13, 2019

Policy protects nearly 800,000 young immigrants, many of whom are college students

The Supreme Court heard oral arguments yesterday on whether President Trump’s decision to rescind the Obama-era Deferred Action for Childhood Arrivals (DACA) policy was done legally, the culmination of two years of legal action since the administration first announced in 2017 that it would end the program.

DACA 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. The case involves a trio of related disputes, with ACE members Princeton University and University of California among the parties.

Presidents have broad leeway to roll back initiatives implemented by their predecessors, but they must “provide a reasoned explanation for the change,” and their actions cannot be “arbitrary and capricious,” as Slate reported last night. After then-Attorney General Jeff Sessions announced in August 2017 that DACA would be rescinded, a number of colleges and universities, states, nonprofits, and Dreamers themselves filed a lawsuit alleging that the administration’s actions did not pass this test. Three federal district courts agreed, blocking the repeal.

Consensus this morning among the media and court watchers was that the high court’s conservative judges sounded inclined to clear the way for the administration to end the policy. Given the conservative majority on the court, the best hope for DACA’s survival likely depends on Chief Justice John G. Roberts Jr., as The Washington Post and others noted.

However, the president’s solicitor general, Noel Francisco, ran into steady criticism from the court’s four liberal justices during the hearing, so a definitive outcome is not at all clear. Inside Higher Ed wrote that “Perhaps the sharpest moment in the hearing came when Sonia Sotomayor, a member of the court's liberal wing, questioned the government's legal arguments and asked where the government had articulated clearly what she characterized as a political decision. ‘That this is not about the law; this is about our choice to destroy lives,’ she said.”

Last month, ACE and 43 other higher education associations submitted an amicus brief in the case, writing that “DACA has been a symbol of tolerance and openness of our university campuses" and that rescinding the policy would broadcast a “message of exclusion" to other foreign-born students that would “irreparably damage the reputation of America's higher education system in the eyes of the world."

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, a subject that was intensely addressed during oral argument. “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. Francisco told the justices that the Department of Homeland Security’s decision to end DACA is not subject to judicial review at all. Theodore Olson, arguing in support of DACA, urged the court to start with the “strong presumption” that the federal agency’s actions are reviewable.

A final ruling in the case is not expected until spring or summer 2020.

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.


Related Content​

Trump Administration Defends Ending DACA, and Supreme Court’s Conservatives Seemed Receptive
The Washington Post (sub. req.) | Nov. 12, 2019

Argument Analysis: Justices Torn, Hard to Read in Challenge to Decision to End DACA
SCOTUSBlog 

Supreme Court Takes Up DACA
Inside Higher Ed | Nov. 13, 2019

The Supreme Court Seems Ready to Let Trump Kill DACA
Slate | Nov. 13, 2019​

Amicus Brief on Deferred Action for Childhood Arrivals
From ACE and 43 other higher education associations

Memorandum on Rescission Of Deferred Action For Childhood Arrivals (DACA)

Statement by ACE President Ted Mitchell on Supreme Court Decision to Take Up DACA

Protect Dreamers Higher Education Coalition
Dedicated to housing information and resources to help campus leaders, staff, faculty and ​students advocate to Congress on behalf of Dreamers, young people brought to the United States as children and raised as Americans but living under threat of deportation.