SCOTUS Finally Considers DACA Case
By Heather Ham-Warren | FAIR Take | November 2019
On Tuesday, the Supreme Court of the United States (SCOTUS) finally heard oral arguments regarding President Trump’s decision to phase out the Deferred Action for Childhood Arrivals (DACA) program.
Since former Attorney General Jeff Sessions announced the end of DACA in 2017, the program was stopped and restarted several times by lower courts. In an attempt to expedite the process and minimize uncertainty, Solicitor General Noel J. Francisco asked the Supreme Court to accelerate a decision and add the case to its 2018 docket. The request was denied; however, in June the Court announced that DACA would officially be on the 2019 docket.
During the 80-minute arguments the Justices were especially talkative with the first interjection coming from Chief Justice John Roberts within mere minutes of Francisco’s start. The conservative majority of the court appeared cautious of reviewing the administration’s decision, suggesting that they believe the White House provided legally sound reasons for eliminating the program. Justices Gorsuch and Alito seemed particularly wary of authorizing a review that could give the judiciary branch too much power over executive decisions. Conversely, the liberal justices appeared to question whether or not the administration properly considered the ramifications and subsequent fallout for terminating the program.
Ultimately, at issue for the justices are two overlapping questions: Whether the courts have the right to question the executive action, and if a DACA repeal was lawful. Should the court side with the government, their reasoning will be equally important. If the court refuses to override the Department of Homeland Security’s decision, a future administration could simply renew the program; but if the court determines that the DACA program is unlawful, Congress would have to step in to authorize it.
A decision is expected sometime next spring, and President Trump appears eager to make a DACA deal tweeting, “If Supreme Court remedies with overturn, a deal will be made with Dems for them to stay!” A path forward for such a deal in this Congress with an election on the horizon will be difficult at best.