tuesday, november 12 , 2019. the washington post eZ re A
Politics & the Nation
BY ROBERT BARNES
The Supreme Court on Tuesday
will once again review a contro-
versial policy initiated by Presi-
dent Trump and blocked by lower
courts, this time ahead of an elec-
tion year and with the fate of
nearly 700,000 “dreamers”
brought to the United States as
undocumented children hanging
on the outcome.
The Trump administration has
tried for more than two years to
“wind down” t he Deferred Action
for Childhood Arrivals (DACA)
program, announced by Presi-
dent Barack Obama in 2012 to
protect from deportation quali-
fied young immigrants who came
to the country illegally.
Individual DACA recipients, gi-
ant corporations, civil rights
groups and universities have chal-
lenged the administration’s p lans,
and won. Lower courts have
found that the administration re-
lied on faulty legal analysis for
ending the program, rather than
providing lawful reasons that the
courts and the public could e valu-
ate.
Nearly 800,000 people over t he
years have participated i n the pro-
gram, which provides a chance for
enrollees to work legally in the
United States as long as they fol-
low the rules and have a clean
record. More than 90 percent of
DACA recipients are employed
and 45 percent are in school, ac-
cording to one government study.
Dozens of briefs have been filed
in what will be one of the court’s
marquee cases of the term, many
of them only tangentially address-
ing the legal issues at play. In-
stead, they extol the doctors, law-
yers, engineers, students and mil-
itary officers whose accomplish-
ments were made possible by the
program.
Microsoft, which employs
more than 60 DACA recipients, is
a party to one of the lawsuits, and
the tech giant’s president, Brad
Smith, wrote in a recent blog post
that “we represent employers of
all sizes in making the case to
uphold DACA.”
M ore than 140 companies filed
a brief to show what Smith said
was the “serious harm that would
be inflicted on the economy if we
were to lose the contributions of
Dreamers.”
Even Trump has said that he
considers DACA recipients hard-
working and sympathetic, many
of them thriving in the only coun-
try they have ever known. He said
in a tweet last fall: “Does anybody
really want to throw out good,
educated and accomplished
young people who have jobs,
some serving in the military? Re-
ally!”
But Congress and the White
House have been unable for years
to come up with a permanent
solution. Obama set up the pro-
gram after negotiations over a
comprehensive immigration re-
form plan failed. Democrats
passed another measure to pro-
tect DACA recipients, but Trump
and Republicans wanted a more
extensive deal that would include
the president’s plans to build a
wall along the U.S.-Mexico border.
Most recently, Trump has said
that a Supreme Court ruling in
favor of his administration is nec-
essary to bring Democrats back to
the table.
“Rest assured that if the SC
does what all say it must, based on
the law, a bipartisan deal will be
made to the benefit of all!” he
tweeted in September.
T he common thread in the Su-
preme Court showdowns over
Trump’s authority has been the
president making good on cam-
paign pledges to tighten the na-
tion’s borders and crack down on
those in the United States illegal-
ly.
The justices ended their most
recent term in June by stopping
the administration’s plan to put a
citizenship question on the 2020
Census. Even census experts said
such a question was likely to deter
noncitizens from returning the
forms and impede an accurate
population count.
The court ended its 2018 term
by approving the president’s trav-
el ban on visitors from a handful
of mostly Muslim countries.
The only justice in the majority
in both cases was Chief Justice
John G. Roberts Jr., who also
wrote both opinions. He will be
the most closely watched justice
when the court takes up the DACA
case Tuesday.In a sense, the DACA case com-
bines the issues in the previous
two.
Roberts, joined by the court’s
most consistent conservatives,
wrote in the travel ban decision
that Congress has given the presi-
dent “broad discretion” i n immi-
gration matters and that Trump
was lawfully using it to protect the
country.
In the census decision, the
court’s four liberals joined Rob-
erts in his view that courts have a
role in defining limits to that
deference.
Agencies must offer “genuine
justifications for important deci-
sions, reasons that can be scruti-
nized by courts and the interested
public,” Roberts wrote. “A ccepting
contrived reasons would defeat
the purpose of the enterprise.”
In the DACA case, Solicitor
General Noel J. Francisco said in a
brief to the Supreme Court that
the judiciary has no authority to
keep the administration from re-
voking “a discretionary policy of
nonenforcement that is sanction-
ing an ongoing violation of feder-
al immigration law by nearly
700,000 aliens.”
He added: “At best, DACA is
legally questionable; at w orst, it is
illegal.”
It might seem logical that a
program implemented by one
president, Obama, could be re-
scinded by another, Trump. But
California Attorney General Xavi-
er Becerra (D), who is leading one
of the lawsuits against DACA’s
revocation, said that the adminis-
tration’s argument ignores an im-
portant difference.
“President O bama followed the
law to put it in place,” Becerra saidin interview. “Donald Trump did
it the Donald Trump way. You
can’t change the law by breaking
the law.”
The Trump administration
moved to scuttle the program in
2017 after Te xas and other states
threatened to sue to force its end.
Then-Attorney General Jeff Ses-
sions advised the Department of
Homeland Security that the pro-
gram was probably unlawful and
that it could not be defended.
Sessions b ased that decision on
a ruling by the U.S. Court of Ap-
peals for the 5th Circuit, which
said that another Obama pro-
gram protecting immigrants was
beyond the president’s constitu-
tional powers. The Supreme
Court deadlocked 4 to 4 in 2016
when considering the issue.In their book “Border Wars:
Inside Trump’s Assault on Immi-
gration,” New York Times report-
ers Julie Hirschfeld Davis and
Michael D. Shear describe tense
White House meetings between
immigration hard-liners such as
Sessions and Trump aide Stephen
Miller on one side, and others
such as Elaine C. Duke, then the
acting homeland security secre-
tary, on the other.
Duke relented under pressure,
the authors said, but refused to
cite policy objections in her short
memo saying the administration
was winding down the program.
Instead, she relied solely on the
fact that Sessions had said the
program was unlawful.
That h as put the Trump admin-
istration in an unusual position.Instead of arguing broad execu-
tive power over immigration, as it
and other a dministrations have in
the past, it has said the program
was halted because it was proba-
bly unconstitutional.
Washington lawyer Andrew
Pincus, who wrote an amicus
brief on behalf of DACA recipi-
ents, said in a blog post that “such
a ‘law made us do it’ rationale let
the President avoid political ac-
countability for ending an ex-
tremely popular program.”
It has proven unpersuasive to
the lower courts, which have said
the administration must provide
other reasons.
That was at the heart of the
ruling from the U.S. Court of Ap-
peals for the 9th Circuit.
“To be clear: we do not hold
that DACA could n ot be rescinded
as an exercise of Executive Branch
discretion,” Judge Kim McLane
Wardlaw wrote. “We hold only
that here, where the Executive did
not make a discretionary choice
to end DACA — but rather acted
based on an erroneous view of
what the law required — the re-
scission was arbitrary and capri-
cious under settled law.”
Theodore B. Olsen, a solicitor
general under President George
W. Bush who will be one of two
lawyers arguing against DACA’s
rescission, suggested that the
Trump administration’s justifica-
tion falls short of what Roberts
demanded in the census case.
“A n administration may im-
pose new or different priorities,
but only if it adheres to [legal]
requirements and clearly states
its policy choices so that it can be
held publicly accountable for
them,” Olson wrote.
“The judiciary, in turn, has a
limited but essential role: ensur-
ing that the executive considers
and clearly explains the conse-
quences of new approaches, espe-
cially for those who will be pro-
foundly affected by a change.”
The consolidated cases the
court will hear Tuesday are De-
partment o f Homeland S ecurity v.
Regents of the University of Cali-
fornia, Trump v. NAACP and
McAleenan v. Vidal.
[email protected]Supreme Court to weigh Trump’s authority over DACA
Roberts has been pivotal
in past battles about
administration policyJose Luis magana/agence France-Presse/getty images
People take part in a Home Is Here march in support of DACA on Sunday in Langley Park, Md. The march began in New York City and
ended at the Supreme Court. On Tuesday, the justices will once again consider the policy, whose fate will affect 700,000 “dreamers.”15
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