The Deferred Action for Childhood Arrivals was first instigated as an executive order by Barack Obama, and now President Trump has issued the order to rescind it, because it is unlawful based on current U.S. law.
Leftist ‘immigration’ groups sued the administration and various lower courts weighed in. Now, the Supreme Court is hearing oral arguments concerning the case, and on Tuesday, the conservative majority expressed their skepticism over any court intervening in a disagreement of policy by two administrations.
Several of the five conservative justices appeared skeptical that courts can even review the Republican president’s 2017 plan to end the Deferred Action for Childhood Arrivals (DACA) program, which had been implemented in 2012 by his Democratic predecessor Barack Obama.
Even if the court finds that it can be reviewed, conservative justices indicated they think Trump’s administration gave a reasonable explanation for its decision.
Liberal justices emphasized the large number of individuals, businesses and others that have relied on the program.
Many of the people in DACA, no longer very young, are far from “angels.” Some are very tough, hardened criminals. President Obama said he had no legal right to sign order, but would anyway. If Supreme Court remedies with overturn, a deal will be made with Dems for them to stay!
— Donald J. Trump (@realDonaldTrump) November 12, 2019
The court’s 5-4 conservative majority includes two justices – Neil Gorsuch and Brett Kavanaugh – appointed by Trump.
The justices heard the administration’s appeals of lower court rulings in California, New York and the District of Columbia that blocked Trump’s move as unlawful and left DACA in place.
Trump’s administration has argued that Obama exceeded his constitutional powers when he created DACA by executive action, bypassing Congress. Trump has made his hardline immigration policies – cracking down on legal and illegal immigration and pursuing construction of a wall along the U.S.-Mexican border – a centerpiece of his presidency and 2020 re-election campaign.
Kavanaugh said there is no reason to think that the administration’s consideration of the impact its decision would have on individuals, when weighed against its contention that the DACA program was unlawful from the beginning, was anything other than a “considered decision.”
According to USCIS—54,000 illegal aliens with criminal records were approved for DACA
17,000 had multiple criminal arrests
8,000 were arrested AGAIN after having received benefits
DACA is unconstitutional & dangerous
Supreme Court should strike it down today!
— Charlie Kirk (@charliekirk11) November 12, 2019
Conservative Chief Justice John Roberts – who could be the pivotal vote in deciding the case – questioned whether there was much more that needed to be added to the administration’s rationale even if the court were to rule in favor of the challengers and send the issue back for further review.
The challengers who sued to stop Trump’s action included a collection of states such as California and New York, people currently protected by the program and civil rights groups.
Were the court to rule in favor of the challengers it would merely prolong the uncertainty for “Dreamers,” Gorsuch said.
“What good would another five years of litigation … serve?” Gorsuch asked.
DACA currently shields about 660,000 immigrants – mostly Hispanic young adults – from deportation and provides them work permits, though not a path to citizenship.
Much of the administration’s reasoning in trying to end DACA was based on then-Attorney General Jeff Session’s conclusion in 2017 that the program was unlawful.
Gorsuch pressed an attorney representing supporters of DACA about the limits on courts to second guess decisions by federal agencies that are within their discretion to make. Gorsuch also seemed skeptical that the administration had not adequately addressed its reasons for rescinding the program, as DACA advocates have argued.
Liberal Justice Sonia Sotomayor demanded that U.S. Solicitor General Noel Francisco, who argued the case for the administration, identify whether the administration considered all the harm that ending the program would do, or if it was just a “choice to destroy lives.”
Francisco was repeatedly questioned as to why the administration has justified ending the program because of its purported unlawfulness instead of giving other reasons for why it wants to.
Toward the end of the argument Francisco pushed back, saying the administration was not trying to shirk responsibility for ending a popular program.
“We own this,” Francisco said, referring to Trump’s decision to kill DACA.
The lower courts ruled that Trump’s move to rescind DACA was likely “arbitrary and capricious” and violated a U.S. law called the Administrative Procedure Act.
The justices must determine whether administration officials failed to provide adequate reasons for the decision to end DACA. The initial memo rescinding DACA, the plaintiffs said, gave a “one-sentence explanation” and did not spell out why the administration believes the program is unlawful. The justices will also have to decide whether the administration’s action against DACA is even something courts can review.
Reuters contributed to this report.