With a crowd of protesters just outside the building, the justices of the nation’s highest court heard arguments Tuesday that may determine the fate of a popular program that protected young immigrants from deportation.
At issue is whether a program called Deferred Action for Childhood Arrivals, or DACA, was properly terminated in 2017 by the administration of President Donald Trump.
The program, created in 2012 by an executive order of President Barack Obama, was aimed at shielding from deportation some 700,000 people who came into the United States illegally as children.
Trump’s Department of Homeland Security and its attorneys have argued that the Obama action was illegal and wrongly required the government to suspend its normal policies against illegal immigration.
“After all, the Department of Homeland Security is a law enforcement agency, and a law enforcement agency doesn't have to push its dubious power to not enforce the law to its logical extreme,” Solicitor General Noel Francisco told the justices.
Theodore Olson, a former solicitor general representing those challenging the Trump administration’s action, said “termination of DACA triggered abrupt, tangible, adverse consequences and substantial disruptions in the lives of 700,000 individuals, their families, employers, communities, and Armed Forces.”
“That decision required the government to provide an accurate, reasoned, rational, and legally sound explanation. It utterly failed to do so,” he said.
One of the two main disputes at the center of the case issues of the hearing was whether the government’s decision to end DACA violated the Administrative Procedure Act (APA), a federal law that set standards for agency actions, requiring that they not be arbitrary or capricious.
“That decision did not violate APA for two reasons,” Francisco said. “First, it’s not subject to judicial review…Second, the decision to end this non-enforcement policy was eminently reasonable.”
Justice Ruth Bader Ginsburg raised what she called a “strange element” to Fransico’s argument regarding the department’s discretion to terminate DACA.
“How can it be committed to your discretion when you're saying we have no discretion; this is an illegal program?” Ginsburg asked.
Justice Sonia Sotomayor, an Obama appointee, also questioned the clarity of the government’s reasons for ending the program.
“There's a whole lot of reliance interests that weren't looked at, including the...current president telling DACA-eligible people that they were safe under him and that he would find a way to keep them here,” Sotomayor said. “And so he hasn't and, instead, he's done this. And that, I think, has something to be considered before you rescind a policy. “
Justice Neil Gorsuch, a Trump appointee, said the justices were looking for the right balance in deciding what agency actions are reviewable and what are discretionary and thus out of the purview of the courts.
“I hear a lot of facts, sympathetic facts, you put out there, and they speak to all of us,” Gorsuch told Olsen. “What’s the limiting principle?”
Justice Brett Kavanaugh, also a Trump appointee, said that “regardless of whether these concerns about the DACA policy rendered it illegal or legally questionable, there are sound reasons of enforcement policy to rescind the DACA policy. And (a Homeland Security Department memo) goes on to explain the policy rationales to rescind it.”
The court is expected to rule next year, in the middle of the 2020 presidential race.
Meanwhile, across the street, congressional Democrats urged their Republican colleagues in the Senate to pass legislation making the DACA program permanent.
“This is an important day,” House Speaker Nancy Pelosi, D-California, said at a press conference with the House Hispanic Caucus and a number of DREAMERS. “And we hope and pray that the courts will do the right thing, the All-American thing.”
Trump tweeted before the court arguments that “many of the people in DACA, no longer very young, are far from ‘angels.’ Some are very tough, hardened criminals.”
That is false: to qualify as a DACA recipient, an undocumented immigrant may not have a criminal record.
Thousands of DACA recipients and supporters rallied in frigid temperatures outside of the Supreme Court as the hearing took place.
“We’re not going to go another year without receiving an answer,” said Gabriela Hernandez, a 20-year-old DACA recipient who came to the United States when she was 15. “We’re not going to be kept in a limbo because this is our actual lives.”
Hernandez came with Maryland-based organization CASA to show her support for the program. She said several groups camped outside the court the night before, while others traveled from as far as Pennsylvania, New York, and California just to take part.
Among the groups was The “Home Is Here” March, which kicked off a 16-day walk to the court from New York in October and arrived Monday night. Roughly 200 people signed up to make the journey.
The Washington Ethical Society, a local congregation, also came to the rally to stand in solidarity for DACA.
“It’s important to make a statement that is visible. Not only here in Washington, but hopefully, the rest of the country,” said Wayne Milsestuem, a member of the congregation.
“The goal was really just to show that we’re going to put a face to the millions of people they think don’t have to give an answer and we’re going to demand an answer this time,” Hernandez said.