The Supreme Court hears oral arguments Tuesday in a trio of cases with the potential to reshape the nearly two-decades-old push in Congress for more permanent protections for immigrants who arrived in the United States as children.
The cases center on whether the Trump administration properly decided to cancel an Obama-era program that gives nearly 700,000 so-called Dreamers the ability to work and avoid deportation to countries they left at such a young age that they may not even remember.
At best, the Supreme Court’s decision could give those Dreamers reprieve if only for a short time. At worst, although considered less likely, the justices could find that presidents can’t give those temporary protections under current immigration law.
The direction and sweep of the Supreme Court’s ruling will determine what new political pressures will surround the debate over the Deferred Action for Childhood Arrivals program, particularly because it is expected to come at the end of the court’s term in June, at the height of the presidential election.
Regardless of the court’s actions, Congress would still have to act to make those protections permanent. The issue remains caught in the political clashes around a comprehensive immigration overhaul — and for now DACA is stuck in the courts.
President Donald Trump has used the DACA case as part of the debate about legislation for immigration and border security, at the center of which is his controversial plans for a wall along the Mexican border.
In his characteristically mercurial style, Trump has praised the Dreamers as “good, educated and accomplished young people who have jobs, some serving in the military” while also bashing Democrats for not passing legislation to protect the border.
In October, Trump tweeted that if the Supreme Court does not allow DACA to continue, “the Republicans and Democrats will have a DEAL to let them stay in our Country, in very short order.”
“It would actually benefit DACA and be done the right way!” Trump tweeted.
But the politics of what the court could decide and the political fallout are not as simple.
Even if the justices side with the challengers, who argue that the administration did not have a good enough reason to rescind the program, Trump could simply use different reasons to try again to end the DACA program.
The question is whether Trump would do so just a few months ahead of the election. Polls have shown Americans largely favor protections for Dreamers, with several polls showing about three-quarters of them saying they should be allowed to stay and apply for citizenship.
Sen. Richard J. Durbin, the Illinois Democrat who first introduced an act to protect Dreamers and has a new version this year with South Carolina Republican Sen. Lindsey Graham, told CQ Roll Call there are “a lot of unanswered questions” about what happens after such a ruling.
“The president wanted to be tough on DACA, but he was preparing to lose. If he does lose, would he issue his own DACA order at that point?” Durbin said.
The Trump administration determined the Obama-era DACA policy was unlawful and unconstitutional and revoked it in September 2017. But the program has continued because lower courts have said that was not a good enough reason since no court has found the DACA program illegal.
While the Trump administration eventually did cite some policy reasons for canceling DACA, it did so reluctantly, said Marty Lederman, a professor at Georgetown University Law Center.
The Trump administration “wanted to justify the decision that the law made us do it,” Lederman said at a panel discussion. “‘We don’t want to do it. We’re in favor of the Dreamers, the president says as much, and gosh, we have no choice but to do it.’”
On the other hand, the court could simply rule that the Trump administration had discretion to rescind DACA. That “would mean this is now a hot-button issue in the election, and if a Democrat wins that DACA is reinstated immediately,” Lederman said.
In both of those scenarios — if the court allows Trump’s 2017 decision to end DACA, or if Trump rescinds it again on new policy grounds — the result is the same for Dreamers. They could lose protections as the program is phased out, but they might get them back if a Democrat wins the White House.
The end of the case could also mean a new push for legislation and reset the landscape with new political pressures, particularly if the Supreme Court finds that the original DACA program was unlawful.
Such a ruling would mean a president couldn’t continue the temporary protections, and Congress changing immigration laws would be the only way the Dreamers could be sure of avoiding deportation and continue to work legally in their communities.
The Trump administration told the Supreme Court in a brief last year that the uncertainty around the litigation “would continue to impede efforts to enact legislation addressing the legitimate policy concerns underlying the DACA policy.”
Attorney General William Barr, in a September op-ed in The Wall Street Journal, said lower court rulings in the DACA cases interfered in the legislation solution.
The judges awarded “the Democrats by judicial fiat what they had been seeking through a political compromise,” Barr wrote.
“Far from solving the problem, the DACA injunction proved catastrophic,” Barr wrote. “The program’s recipients remain in legal limbo after nearly two years of bitter political division over immigration, including a government shutdown.”
Stalled in Senate
But immigration remains a divisive issue, and congressional inaction is the status quo. The House has sent to the Senate legislation that would grant permanent citizenship to up to 2.5 million undocumented immigrants, including Dreamers. The Senate hasn't voted on the measure.
The Senate blocked immigration proposals to address DACA in February 2018. Durbin last week pointed out that senators voted overwhelmingly against the White House-backed bill.
A Supreme Court ruling “could” restart legislative work on Dreamers, Durbin said. But he added that the Trump administration wasn’t negotiating in good faith during legislative efforts and “weren’t really prepared to address any part of immigration reform.”
Get breaking news alerts and more from Roll Call on your iPhone.