In 2012, then-President Barack Obama implemented the Deferred Action for Childhood Arrivals (DACA) program, an initiative blocking the enforcement of immigration laws on those who entered the country illegally as young children temporarily — until Congress could find a final resolution. In 2017, President Donald Trump’s administration attempted to rescind the discretionary DACA program, but was blocked by district and circuit courts.
The ensuing battle has now made its way to the Supreme Court, and ahead of the court’s decision, the Justice Department has filed a brief arguing that the Department of Homeland Security (DHS) does indeed has the authority to end the discretionary policy of non-enforcement.
DACA heads to Supreme Court
The U.S. Supreme Court is scheduled to hear arguments in the consequential DACA case in November and should issue a ruling on the matter in early 2020, just ahead of the general election campaign season.
In previous months, lower courts have ruled against the administration’s position and even issued nationwide injunctions that prevented the DHS from making any changes to the DACA program, much less end it entirely.
But the Department of Justice (DOJ) has argued that the lower courts were wrong to impose nationwide injunctions, that DHS holds full authority to revise its own interpretations of the laws, and that, in light of similar discretionary programs being struck down by other courts, DACA was most likely unlawful and should be ended as well.
DACA “legally questionable” at best, “illegal” at worst
The DOJ recently filed a legal brief with the Supreme Court that outlined the history of the program and background of the case as it worked its way through the court system, citing precedents and statutes along the way in which DHS was granted the authority necessary to decide the fate of the DACA program.
“At best, DACA is legally questionable; at worst, it is illegal,” the DOJ argued. “Either way, DACA is similar to, if not materially indistinguishable from, the policies — including an expansion of DACA itself — that the Fifth Circuit previously held were contrary to federal immigration law in a decision that this Court affirmed by an equally divided vote.
“In the face of those decisions, DHS reasonably determined — based on both legal concerns and enforcement priorities — that it no longer wished to retain DACA. Yet two nationwide preliminary injunctions have forced DHS to maintain this entirely discretionary policy for nearly two years,” the brief continued.
Fate of DACA hangs in the balance
The DOJ also took issue with the explicit reasoning of the lower court rulings and argued that the Administrative Procedures Act didn’t require DHS to retain a policy that in all likelihood was unlawful, as such a decision rested solely within the executive branch and likely wasn’t even reviewable by the courts under the provisions of that statute.
“But even if DHS’s decision were reviewable, DHS’s legal and policy justifications for discontinuing DACA were not remotely arbitrary or capricious,” the DOJ argued. “DACA was created as a temporary, stopgap measure in 2012, after legislative efforts to provide permanent immigration relief for a similar class of aliens repeatedly failed.”
The brief went on: “DHS has offered a number of reasons why it now wishes to withdraw that policy and instead enforce the [Immigration and Naturalization Act] as written, and the lower courts’ criticisms of those rationales do not withstand scrutiny.”
It remains to be seen how the Supreme Court will rule on the DHS effort to end the DACA program, but given the fact that decisions to end related and similar programs have been upheld by the courts, the existence of compelling legal arguments on executive authority, and the currently conservative nature of the court, the odds are in favor of the Trump administration ultimately prevailing in this ongoing legal saga.