Supreme Court Rules Wind Down of DACA Illegal
By Preston Huennekens | FAIR Take | June 2020
On June 18, the Supreme Court of the United States (SCOTUS) ruled in a 5-4 decision that the Trump Administration - specifically, the Department of Homeland Security (DHS) - illegally ended the Deferred Action for Childhood Arrivals (DACA) program. Chief Justice John Roberts authored the majority opinion in DHS v. Regents of the University of California, joined by justices Ginsburg, Breyer, Kagan and Sotomayor. Justice Clarence Thomas penned the dissenting opinion joined by Alito and Gorsuch. Justice Kavanaugh wrote a separate dissent.
The decision rests on the court’s belief that acting DHS secretary Elaine Duke acted improperly when she began the wind down of DACA in 2017 at the request of the Justice Department under Attorney General Jeff Sessions. The majority opinion noted that:
We do not decide whether DACA or its rescission are sound policies. “The wisdom” of those decisions “is none of our concern.” Chenery II, 332 U. S., at 207. We address only whether the agency complied with the procedural re- quirement that it provide a reasoned explanation for its action. Here the agency failed to consider the conspicuous issues of whether to retain forbearance and what if anything to do about the hardship to DACA recipients. That dual failure raises doubts about whether the agency appreciated the scope of its discretion or exercised that discretion in a reasonable manner. The appropriate recourse is therefore to remand to DHS so that it may consider the problem anew. [page 29]
Roberts further concluded that “The dispute before the Court is not whether DHS may rescind DACA. All parties agree that it may. The dispute is instead primarily about the procedure the agency followed in doing so” and that the procedure and justification for ending DACA was “arbitrary and capricious.” In a nutshell, the majority in DHS v. Regents did not justify the existence of DACA - they only found issues with the minutiae of how DHS ended the program.
Thoma’ scathing dissent stated that:
Today’s decision must be recognized for what it is: an effort to avoid a politically controversial but legally correct decision. The Court could have made clear that the solution respondents seek must come from the Legislative Branch. Instead, the majority has decided to prolong DHS’ initial overreach by providing a stopgap measure of its own. In doing so, it has given the green light for future political battles to be fought in this Court rather than where they rightfully belong—the political branches. Such timidity forsakes the Court’s duty to apply the law according to neutral principles, and the ripple effects of the majority’s error will be felt throughout our system of self-government. [page 3]
This is a puzzling decision and one that comes as a disappointment to supporters of immigration reform. There was once a cautious hope that the administration could negotiate a deal for a codification of current DACA recipients in exchange for mandatory E-Verify and asylum reform, something similar to then-representative Bob Goodlatte’s Securing America's Future Act of 2018.
Now, no one expects the administration and Congressional Democrats to rush to find a legislative solution to our broken immigration system. More than likely, both sides will ignore the still-unsolved problem until after the 2020 presidential election.