The Trump administration’s incompetence has once again undone one of its signature policy initiatives. The Supreme Court handed Trump a major defeat on Thursday in his campaign to end the Deferred Action for Childhood Arrivals program, more commonly known as DACA. In a 5–4 decision, the justices ruled that the administration had broken federal law when it concocted its rationale to scrap the program, which provides temporary legal status to more than 700,000 young undocumented immigrants.
“We do not decide whether DACA or its rescission are sound policies. ‘The wisdom’ of those decisions ‘is none of our concern,’” Chief Justice John Roberts wrote for the court, paraphrasing an earlier Supreme Court ruling. “We address only whether the agency complied with the procedural requirement that it provide a reasoned explanation for its action.” Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor, and Elena Kagan joined the ruling.
Thursday’s ruling does not ensure DACA’s survival in the long term. It merely offers the Trump administration another chance to shut it down in a more lawful manner. But that process will likely extend past the November election, once again placing the fates and fortunes of the immigrants colloquially known as the “Dreamers”—because of the Dream Act that was devised to provide a legislative solution to this predicament—on the ballot in November. Polling regularly shows that large majorities of Americans want to provide DACA recipients with a pathway to citizenship. The Supreme Court has effectively given them a chance to prove that they mean what they say.
The case, Department of Homeland Security v. Regents of the University of California, can be traced back to the Obama administration’s decision to create the DACA program in 2012. Congress had long debated legislative measures to provide permanent legal status to Dreamers without success. The White House eventually opted to provide what it described as a “temporary stopgap measure” by invoking the executive branch’s discretionary powers to prioritize immigration enforcement. Dreamers, the administration argued, were far from an urgent target. “They are Americans in their heart, in their minds, in every single way but one: on paper,” Obama said when announcing the policy.
To receive temporary legal status, DACA applicants had to meet a set of age- and education-related criteria and lack a criminal record. Successful recipients could then secure work permits, reenter the United States if they temporarily left it, and avoid deportation proceedings. The protection lasts for up to two years, though it can be renewed as long as the recipient remains eligible. Two years later, Obama announced the Deferred Action for Parents of Americans program, or DAPA, to shield millions of undocumented immigrants whose children were U.S. citizens or green-card holders.
In response, Texas and a coalition of Republican-led states sued the federal government to challenge DAPA’s legality. The Fifth Circuit Court of Appeals sided with the states and temporarily blocked the program from taking effect. After the Supreme Court agreed to review the ruling, Antonin Scalia’s death left the court evenly split between its liberal and conservative members. The court eventually announced, in the summer of 2016, that it had deadlocked in a 4–4 split in the case. The tie vote left the Fifth Circuit’s ruling intact but set no nationwide precedent.
Had Hillary Clinton won the presidential election and successfully nominated a justice to fill the vacant Supreme Court seat, DACA’s legal history may have taken a much different course. Trump’s election, however, boded ill for the program’s continued existence. After taking office, Trump expressed sympathy with DACA recipients while preparing to shutter the program, apparently hoping to shift blame for the unpopular move onto Congress, which failed to act. (The administration abandoned DAPA, which had never taken effect, a few months later.) In 2017, Elaine Duke, the acting secretary of homeland security at the time, reportedly resisted pressure from the White House to echo its anti-immigrant views when ending DACA. Her memo instead cited threadbare advice from then–Attorney General Jeff Sessions that the program was unlawful as its sole justification.
Duke’s reluctance proved to be, like the Death Star’s exhaust port, a small but critical legal weakness in the administration’s campaign against DACA. If she had cited policy or discretionary reasons for the change, the executive branch would be on much firmer legal footing under the Administrative Procedures Act, which governs how executive agencies craft rules and regulations. A medley of litigants—including Democratic-led states, colleges, and university systems; and DACA recipients themselves—argued that the program’s closure was illegal because it was solely based on a misreading of federal law. Multiple lower federal courts agreed with them, finding that the administration’s move was “arbitrary and capricious” under the APA.
The administration argued that the courts had no standing to review what amounted to prosecutorial discretion. In June 2018, then–Secretary of Homeland Security Kirstjen Nielsen released a second memo outlining the administration’s rationale for ending the program, after a federal court in D.C. held that DHS’s decision could be reviewed by the courts. While she reiterated the department’s belief that the program was on shaky legal footing, she also raised other nonlegal rationales. The plaintiffs, however, argued that while the government has the power to end the program, it is also bound by federal law to do so in a reasonable manner. Nielsen’s ex post facto justifications, they argued, highlighted the original memo’s flaws instead of curing them.
At oral arguments last November, the court’s conservative bloc signaled it would side with Trump’s efforts to wind down DACA sooner rather than later. “What good would another five years of litigation over the adequacy of that explanation serve?” Justice Neil Gorsuch asked Ted Olson, who argued on behalf of DACA recipients. The court’s liberals, for their part, showed greater skepticism toward the administration’s shifting rationales. The justices also appeared mindful of the consequences of their ruling. While questioning Solicitor General Noel Francisco, who represented the administration, Justice Sonia Sotomayor paraphrased the government’s argument in court as saying that “this is not about the law; this is about our choice to destroy lives.”
Writing for the court on Thursday, Roberts rejected the administration’s assertion that the courts could not review the matter, noting that DACA itself was “more than simply a non-enforcement policy.” He then rejected DHS’s arguments on the merits as well. By resting its decision to unwind DACA solely on Sessions’s perfunctory analysis, Roberts found that the department made key errors about the program’s legality. Since that analysis largely focused on whether extending benefits like Medicare and Social Security through DACA would be lawful, Roberts wrote, DHS did not offer a rationale for scrapping DACA’s protections against deportation. “That omission alone renders Acting Secretary Duke’s decision arbitrary and capricious,” he wrote.
Wading through the Trump administration’s sloppiness is a familiar role for the chief justice. Last year, Roberts delivered the fifth vote and the fatal blow to the Department of Commerce’s efforts to put a citizenship question on the 2020 Census. While the Justice Department claimed that the question was necessary to enforce the Voting Rights Act of 1965, the move’s challengers claimed it was a pretext to reduce nonwhite participation rates. Roberts, perhaps influenced by the late discovery of files from a Republican strategist that validated the challengers’ arguments, concluded that the government’s rationale “seems to have been contrived.” The Census forms were later printed without the question on them.
The other four conservative justices, for their part, accused the majority of bending law and precedent to avoid an uncomfortable outcome. “Today’s decision must be recognized for what it is: an effort to avoid a politically controversial but legally correct decision,” Justice Clarence Thomas wrote in dissent. “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.”
Justice Brett Kavanaugh, in his own dissent, also blamed federal lawmakers for their role in Thursday’s decision. “The Court’s resolution of this narrow APA issue of course cannot eliminate the broader uncertainty over the status of the DACA recipients,” he wrote. “That uncertainty is a result of Congress’s inability thus far to agree on legislation, which in turn has forced successive administrations to improvise, thereby triggering many rounds of relentless litigation with the prospect of more litigation to come.” While it’s not the fault of Congress that Trump tried to scrap DACA, of course, Kavanaugh is correct that it is ultimately responsible for DACA recipients’ precarious status.
There was a point of agreement in this case where almost all of the justices concurred. The administration’s challengers cited Trump’s history of racism toward Hispanics to argue that his administration violated the Fifth Amendment by trying to end DACA. Roberts and seven of the other justices rejected that claim outright. They concluded that most immigration policy changes like DACA would disproportionately affect Hispanics, and that Trump’s racist remarks on the campaign trail weren’t closely related enough to the decision for the claim. Only Justice Sonia Sotomayor dissented from that conclusion, arguing separately that the challengers should have an opportunity to gather more facts for their case in the lower courts.
That opportunity may prove unnecessary. If the Trump administration makes another attempt at DACA’s rescission, the federal rulemaking process will likely delay its implementation until after the November presidential election. If Joe Biden, the presumptive Democratic nominee, manages to prevail, more than 700,000 DACA recipients will not need to fear their deportation from the only country that many of them have ever known. Trump’s failure to achieve a key policy goal in his first or only term will likely enrage the ever-voluble president. As with many of his other administrative-law missteps, however, he has only himself and his administration to blame.