Hey, How's That New Supreme Court Working Out For You?
On Tuesday, the Supreme Court held oral arguments in a trio of cases about Trump's decision to terminate Deferred Action for Childhood Arrivals (DACA): Department of Homeland Security (DHS) v. Regents of the University of California, Trump v. NAACP, and McAleenan v. Vidal.
Outside, there were so many pro-DACA demonstrators that police shut down the street in front of the Supreme Court. Inside, the courtroom was packed with Dreamers -- the people who were brought to the US as children, who just about everyone agreesare American and belong here. Just about.
Trump Solicitor General Noel Francisco went up against George W. Bush Solicitor General Theodore Olson and California Solicitor General Michael Mongan as the three argued about whether Trump's decision to terminate DACA was legal.
This case is incredibly important. Roughly 700,000 Dreamers currently have DACA status. DACA allows undocumented people who came to the US as children to live and work here legally, provided they register with the government and meet a number of criteria.
The average DACA recipient came to the US at age three. People who have been working here legally under the program could once again find themselves eligible for deportation.
And right now, Dreamers' chances don't look good.
Not only did all five conservative justices appear to sympathize with the government during oral argument -- even a win for the challengers is likely to result in the end of DACA.
As Justice Sonia Sotomayor said during oral arguments, ending DACA will "destroy [the] lives" of hundreds of thousands of people. People who are eligible for DACA came here as children and don't know life anywhere else. Many don't even speak the language of their native countries. They are Americans who grew up in America, but thanks to racism and antiquated immigration laws, they lack legal status.
The fact that SCOTUS decided to hear this case at all was an indication that they weren't going to side with Dreamers. Several different courts had already ruled against Trump and found his termination of DACA unlawful, and generally the Supreme Court doesn't decide to hear cases because they agree with the lower courts' decisions.
In order to win this case, the challengers will have to convince one of the Court's five conservative justices to side with them. Every justice except Samuel Alito (who has no soul) and Clarence Thomas (who never speaks and also has no soul) expressed at least some concern that so many people had relied on DACA. But that's probably not enough to save the program.
The main issue the justices are considering is narrow but complex: Did the Department of Homeland Security give an adequate reason for ending DACA?
This is an administrative law issue, not a constitutional one. As Professor Garrett Epps wrote for The Atlantic:
This is an odd posture for this case to end up in. It frames the concrete issue—the lives of nearly a million young people who have grown up in this country—in the airless abstract language of administrative law and its dreaded mother document, the Administrative Procedure Act.
President Obama created DACA with an executive order, which means as a general matter that Trump could rescind it with an executive order (which, of course, he did, because he is an evil piece of shit who hates brown people). Even the lower court decisions enjoining Trump's decision to end DACA note that it's indisputable that Trump can end DACA. The issue for the Court isn't that Trump ended DACA -- it's the way he decided to do it.
Whether the decision to rescind DACA was legal depends on the answers to two questions: (1) Was DHS's decision to terminate DACA based on policy reasons or legal reasons?; and (2) Did DHS give a legitimate explanation for the change?
If DHS's decision was based solely on policy, it's essentially unreviewable by the judiciary. But if it's based on legal reasoning, courts get to step in and say what the law really is.
The memos the government used to support its decision were all based on a finding by then-Attorney General Jefferson Beauregard Sessions that DACA itself was an illegal overreach by President Obama. As California Solicitor General Mongan argued, the government did not "take serious account of the dramatic costs to DACA recipients and the economy and their employers and families of terminating this policy, and also that it is founded on the incorrect legal premise that DACA is unlawful."
If the Court finds the decision reviewable, it will then look to whether the justifications offered by the government were sufficient. One issue that repeatedly came up during oral arguments was something called reliance interest. Generally, if the government is ending a policy a lot of people have relied on, it's required to explain why it's changing that policy in spite of the fact that a lot of people are depending on it.
Even John Roberts, Neil Gorsuch, and Kegs Kavanaugh seemed concerned about the reliance interests involved in DACA. And as Justice Stephen Breyer noted, the 700,000 people who currently have DACA status aren't the only ones with reliance interest in the program. DACA also affects families, businesses, labor unions, educators, military organizations, and state and local governments, among others.
I counted briefs in this Court, as I'm sure you have, which state different kinds of reliance interests. There are 66 healthcare organizations. There are three labor unions.There are 210 educational associations. There are six military organizations. There are three home builders, five states plus those involved, 108, I think, municipalities and cities, 129 religious organizations, and 145 businesses.
Although three conservative justices expressed some concern about reliance interest, they pushed back much harder against the parties challenging Trump's decision. Even the conservative justices who expressed sympathy towards Dreamers seemed skeptical of the challengers' arguments. And Justice Alito was more than willing to accept Trump's lies about not wanting to deport Dreamers at face value, saying during the argument that "Both [the Obama and Trump] administrations have said they're not going to deport people."
Where things currently stand, even a best case scenario will leave Dreamers with a lot of uncertainty and anxiety. But that's still a far better prospect than the alternative. Even Justice Breyer expressed doubt that remanding the case would result in a different outcome for Dreamers, asking the challengers, "What's the point?"
If Trump loses the case, he could change his mind on DACA and reinstate the program. But the more likely scenario is that he'll just have DHS draft a new memo about why it's ending the policy. In that case, DACA's only hope for survival would hinge on tying the new memo up in litigation and a Democrat winning the 2020 election.
The worst case scenario is, believe it or not, even more bleak than just ruining the lives of these 700,000 odd Americans who lack the proper paperwork to be citizens. The Court could go even further than just allowing DACA's termination and rule that DACA was illegal when it was enacted, a decision that could tie the hands of future administrations for decades to come.
Trump, the racist-in-chief that he is, of course felt the need to tweet some racist lies about DACA recipients being criminals. Here in reality, immigrants are ineligible for DACA if they've committed a felony, a serious misdemeanor, or three misdemeanors of any kind. In the same tweet, Trump also claimed he would work with Democrats to pass legislation to let Dreamers stay here legally. Because he has shown SO MUCH willingness to work with Democrats on things, especially immigration policy.
Many of the people in DACA, no longer very young, are far from “angels.” Some are very tough, hardened criminals. P… https://t.co/YpBQiUk0vL— Donald J. Trump (@Donald J. Trump) 1573559128.0
When digging into the legal issues in this case, it can be easy to lose sight of the real, human lives we're talking about. People who have been here basically their whole lives could suddenly be deported to countries they have never known.
But that's what happens when a minority of the country elects a fascist.
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