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DACA recipients get their day at the Supreme Court

Like countless teenagers across the country, Maria Valencia is trying to figure out what she wants to do with her life.聽

She knows she wants to help people. After caring for her sick mother and volunteering at a nursing home, she is now studying to become a nurse.

Five years ago, that wouldn鈥檛 have have been possible. But since applying for the Deferred Action for Childhood Arrivals (DACA) program and being granted deferred status from deportation, as well as temporary work authorization, Ms. Valencia has been able to navigate high school and college. She has been able to work, apply for internships, visit relatives, and spend a spring break cleaning up a North Carolina town ravaged by Hurricane Florence.聽

The Obama administration implemented DACA to protect from immediate deportation people who had come as children, had not committed crimes, and were students or in the military 鈥� a lawful exercise of prosecutorial discretion by the executive branch, the administration argued at the time. An estimated 700,000 young people have benefited from the program.

In late 2017 the Trump administration moved to end DACA. Several lower courts have blocked the program鈥檚 termination, however, and on Tuesday, the U.S. Supreme Court heard oral arguments in the administration鈥檚 appeal of that ruling. The court鈥檚 decision could have major consequences both for presidential power and for the hundreds of thousands of Dreamers like Ms. Valencia who have earned DACA status.

She鈥檚 studying at the University of Houston. Whether she will be able to pursue a career in the U.S. after graduating is a question the Supreme Court will have to answer.

鈥淣ot only was I able to get a scholarship [because of DACA], I got a lot of jobs, internships. I got experience. I was able to give back to my community,鈥� she adds. 鈥淚f it was taken away I wouldn鈥檛 be able to do that.鈥澛�

Immigration and administrative law

While a legal case about DACA may appear, on the surface, to be about immigration, this week鈥檚 case delves into the similarly murky realm of administrative law.

The first question, then, is whether the courts are able to review the Trump administration鈥檚 decision at all. The U.S. Court of Appeals for the Ninth Circuit rejected the idea that courts couldn鈥檛, ruling that the government 鈥渕ay not simultaneously both assert that its actions are legally compelled ... and avoid review of that assertion by the judicial branch.

The second, and final, question is then whether the Trump administration鈥檚 decision to end the program was lawful. In 2017, then-Attorney General Jeff Sessions said in a brief memo, which has been rejected by lower courts, that the government could not enforce DACA because of 鈥渃onstitutional defects.鈥澛�

The administration鈥檚 core argument that DACA is unlawful centers on a 2015 ruling by the Fifth Circuit Court of Appeals.聽

In that case the appeals court ruled DAPA, a similar Obama-era program for unauthorized immigrants with lawfully present children, and a DACA expansion violated executive powers Congress delegated in the Immigration and Nationality Act. That statute, the Fifth Circuit wrote, applied to 鈥渘arrow classes of aliens鈥� and not those of 鈥渧ast 鈥榚conomic and political significance.鈥欌�澛�

That ruling was appealed to the Supreme Court, but only eight justices decided the case and they could not find a majority. Their 4-4 ruling affirmed the appeals court ruling without addressing the merits.聽

No court has ruled on the legality of the original DACA policy, but the Fifth Circuit鈥檚 decision 鈥渉olding DAPA and the DACA expansion unlawful equally applies to DACA itself,鈥� the Trump administration wrote in its 聽to the high court.

DACA is a popular policy 鈥� 87% of Americans support it, 聽found 鈥� but even among some supporters, the Trump administration鈥檚 arguments carry weight.聽

鈥淲e affirmatively support [DACA] as a matter of policy,鈥� law professors Josh Blackman and Ilya Shapiro in a blog post, but not as a matter of law. 鈥淭he president cannot unilaterally make such a fundamental change to our immigration policy.鈥�

How much deference for executive power?

A core argument in support of DACA is that the policy is no different from any deferred action previous administrations have used in the past.聽

The Ninth Circuit leaned on that history in ruling that the government鈥檚 decision to end DACA was 鈥渁rbitrary and capricious,鈥� writing that the reality 鈥渁lways has been鈥� that the government doesn鈥檛 鈥渉ave the resources required to deport every single person [unlawfully] present in this country.鈥澛�

鈥淭o date no one has really successfully questioned the legality of DACA. No court has found the policy to be unconstitutional,鈥� says Shoba Sivaprasad Wadhia, a professor at Penn State Law. 鈥淏y contrast there鈥檚 a litany of legal authority, foundation, and history to support deferred action.鈥�

The judiciary, and the Supreme Court in particular, has grown increasingly deferential to executive power聽in recent decades. The Trump administration has benefited from this on several occasions, notably when the court upheld the third travel ban from predominantly Muslim countries, in spite of evidence it was motivated by his campaign promise of 鈥渁 total and complete shutdown of Muslims entering the United States.鈥�

The legal justifications for ending DACA are a similar smokescreen for political reasons, critics say 鈥� on this occasion, as leverage to obtain congressional approval to build a southern border wall, Mr. Trump鈥檚 signature campaign promise. (鈥淭he Democrats have been told,鈥� 聽months after rescinding the policy, 鈥渢hat there can be no DACA without the desperately needed WALL at the southern border.鈥�)

In this sense, some experts believe the DACA case could mirror a decision the Supreme Court made just a few months ago: the ruling in June to strike a citizenship question from the 2020 Census.聽

鈥淭he court was not willing to defer to the president in that circumstance,鈥� says Steven Schwinn, a professor at the University of Illinois, Chicago, John Marshall Law School.聽

A month before that decision, documents found on a deceased Republican strategist鈥檚 hard drive directly linked a citizenship question to advantaging the GOP in redistricting. The DACA case doesn鈥檛 鈥渞aise the same kinds of concerns about executive decision-making,鈥� adds Professor Schwinn, 鈥渂ut we have seen the court willing to push back against the president when things get outrageous.鈥�

Justices under the political microscope

More than any executive branch in recent history, the Trump administration has sought from the Supreme Court. Mr. Trump often has been successful, fueling a view that the high court 鈥� and its conservative majority, solidified with two of his appointees 鈥� is essentially his court.

The justices will be under the political microscope again with this case, even besides the fact that on a legal and human level, their ruling will have tremendous consequences.聽

For one, the case could have major implications for executive power and the ability of a president to adapt or abandon the policies of previous presidents.

鈥淭he court doesn鈥檛 have to say DACA was illegal to rule for President Trump,鈥� says Professor Schwinn. But 鈥渋t doesn鈥檛 seem right that one president鈥檚 actions should hinder all future [presidential] actions, and my guess is we鈥檙e going to see language like that in the opinion.鈥澛�

A ruling in favor of the Trump administration, even if it doesn鈥檛 declare DACA unlawful, would almost immediately jeopardize the futures of hundreds of thousands of young people who have been living and working in the U.S. for almost their entire lives.聽

鈥淲e can talk a lot about policies and legal briefs but ultimately this is about people,鈥� says Professor Wadhia. 鈥淢any people with DACA are parents to U.S. citizens. Many people with DACA are teachers in American public schools.鈥�

Ms. Valencia recently learned that two of her co-workers at Best Buy also are DACA recipients. She wants to finish her nursing degree, but if DACA is rescinded she won鈥檛 be able to get a job here. Would she go back to Mexico?

鈥淣o,鈥� she says. 鈥淚 don鈥檛 really know anything over there. Things are not good over there 鈥� a lot of shootings and stuff like that.鈥�

鈥淚 just want to help people, I鈥檝e always known that,鈥� she says. 鈥淚f [DACA] is taken out, of course I鈥檒l be devastated. ... All the things that I like to do, they鈥檒l just be taken away.鈥�

Correction: This article has been updated to correct the co-author of a DACA piece. Prof. Ilya Shapiro cowrote the article with Prof. Josh Blackman.