Next Tuesday, the Supreme Court will hear oral arguments in a case involving the Trump Administration’s attempt to terminate the program of Deferred Action for Childhood Arrivals, or DACA.
DACA is a program directed at immigrants who were brought to the United States before age 16 and without legal authorization. DACA participants are authorized to work in the United States, and are protected from deportation proceedings, for renewable two-year periods.
DACA was started in 2012. Since that time, more than 800,000 individuals have received DACA status, with about 700,000 currently enrolled in the program. About 80 percent of DACA participants arrived in the United States at the age of 10 or younger. DACA recipients live in all 50 states, although more than half currently reside in California and Texas.
DACA participants, most of whom are now high school and college students, employed, or serving in the United States military, call themselves “Dreamers.” It is important to note that unlike the DREAM Act, which would provide DACA enrollees with a pathway to citizenship, DACA itself represents only deferred action, not a change in the recipients’ immigration status. Although the DREAM Act has at times received majority support in either the House or the Senate, it has never been able to overcome a Republican filibuster in the Senate.
During his campaign for the presidency, Donald Trump frequently criticized Barack Obama for establishing the DACA program by executive order, saying it was a good example of Obama’s overreaching his authority. Trump said during the campaign that he would “repeal” DACA on “day one” of his presidency if he were elected.
After being inaugurated, Trump took a somewhat different approach to DACA. He said that while he thought favorably of many of the “Dreamers,” the Obama Administration should never have established the program without the agreement of Congress. Trump said his administration would phase out DACA, and that Congress should include some form of protection for the Dreamers in an immigration bill that had to include authorization and funding for a wall on the Mexican border.
In September 2017, Elaine Duke, the Acting Secretary of Homeland Security, announced that no new applications for DACA would be accepted, and that the program would be wound down over the next six months. Duke said she was required to take this action because of a letter sent her by Attorney General Jeff Sessions, who said that the DACA program was illegal and unconstitutional.
Several universities, businesses, state governments and DACA recipients filed suits in federal courts challenging the Trump Administration’s decision to rescind DACA. In all of these cases, lower federal courts issued injunctions ordering the Department of Homeland Security to continue processing new and renewal applications for DACA. The Justice Department appealed these rulings, and it is those appeals that will be before the Supreme Court next week.
Next week’s argument is not about the merits of the DACA program. Rather, it is about the procedures used by the Trump Administration to cancel the program. Was Attorney General Sessions correct to claim that the Obama Administration’s decision to establish DACA in 2012 was illegal and unconstitutional? Was the Department of Homeland Security required to give a more complete justification of its decision to wind down DACA? Could DHS make that decision without considering the effects of rescinding DACA on the over 700,000 participants in the program, their employers, the educational institutions in which they are enrolled, and their families?
In many ways, the rescission of DACA resembles the Trump Administration’s attempt to add a citizenship question to the census — a decision motivated by prejudice against immigrants that the administration tried to justify with pretextual reasons. By 5-4, with Chief Justice Roberts in the majority, the Supreme Court ruled against the administration on the census question. Will the DACA case have a similar outcome?
Eric L. Davis is professor emeritus of political science at Middlebury College.