DACA is safe — for now.
On Thursday morning, the Supreme Court ruled that the Trump administration can’t immediately end the Deferred Action for Childhood Arrivals program, also known as DACA. Created by President Barack Obama, DACA provides a shield against deportation for more than 700,000 undocumented immigrants who were brought to the U.S. as children and enrolled in the program. But although the ruling is a significant win for DACA’s supporters, it’s only temporary. The majority opinion, written by Chief Justice John Roberts, made it clear that President Trump still has the power to rescind DACA later, if a solid justification is provided — the problem was that the way his administration did it was “arbitrary and capricious,” and therefore violated administrative law.
In effect, this means that the ultimate fate of the DACA recipients — sometimes called “Dreamers” after a failed bill that shared many of the same goals as DACA — will be decided in the presidential election this November … unless, of course, Congress chooses to step in. It’s unlikely that the Trump administration will be able to come up with a satisfactory justification before Americans head to the polls — and even if it does, that decision will likely be immediately challenged in the courts. But if Trump wins reelection, the administration will have ample time to try again.
For now, though, the justices have said that the Trump administration’s rationale wasn’t good enough. In September 2017, Trump announced that he would rescind DACA, but gave only a single reason — that the program was unconstitutional. The administration offered a second justification for ending the program later, but the court said that reasoning needed to come when the program was actually terminated. “Roberts felt that the government didn’t pay sufficient attention to what DACA means to its recipients,” said Peter Margulies, a professor at Roger Williams University School of Law. “These folks are interwoven into our society and really don’t have any other place they can call home. That’s what Roberts is saying to the Trump administration — people have shaped their lives around this program and you can’t ignore that with a stroke of a pen.”
If this sounds similar to Roberts’s ruling last year on whether the Trump administration could add a citizenship question to the 2020 census, you’re on to something. In that case, Roberts also joined the liberals in rejecting the administration’s stated reason for adding the question to the census — but left open the possibility that the administration could offer a legitimate justification later. Ultimately, time constraints kept the Trump administration from taking another bite at the apple because the vast bureaucratic machinery that makes the census possible was already getting into gear.
This time, too, Roberts was clear that the court was not weighing in on whether DACA was a good or bad policy. “We address only whether the agency complied with the procedural requirement that it provide a reasoned explanation for its action,” he wrote in the opinion. The essential question, then, is whether the Trump administration followed the rules. “It’s a decision that Administrative Procedure Act nerds will love,” said Stephen Yale-Loehr, a professor at Cornell Law School, referring to a law that dictates how federal policies can be made and unmade. “The court said, under this domestic law, you’re supposed to do things a certain way, have certain adequate justifications for your actions, and this administration did not follow those procedural requirements.”
Both Margulies and Yale-Loehr pointed out, though, how different today’s ruling was from another Roberts-authored opinion, where the court upheld Trump’s controversial travel ban almost exactly two years ago. “In that case, Roberts is much more inclined to defer to the administration,” Margulies said. It’s possible that the framing of the issue was the key, he added — the travel ban fell more clearly under the sphere of foreign policy, where the executive branch has a lot of latitude, whereas Roberts’s ruling mainly treated the DACA rescission as a domestic issue. “It does make you wonder if Roberts’s attitude is evolving, though, and he’s now less willing to accept the stated justifications that this administration provides,” Margulies said.
And Roberts’s fellow conservatives did accuse the majority of playing politics by sidestepping what they saw as the correct legal result in favor of a ruling that would be more popular. In his dissent, Justice Clarence Thomas described the majority opinion as “mystifying” and argued that the court should have ruled that DACA was illegal instead of extending the legal fight over the program. “In doing so, it has given the green light for future political battles to be fought in this Court rather than where they rightfully belong — the political branches,” Thomas wrote.
Trump seemed to agree. In response to the ruling, he tweeted: “These horrible & politically charged decisions coming out of the Supreme Court are shotgun blasts into the face of people that are proud to call themselves Republicans or Conservatives. We need more Justices or we will lose our 2nd. Amendment & everything else. Vote Trump 2020!”
The decision leaves the fate of DACA in the hands of the voters and Congress, at least for now. “This is a major victory for the Dreamers, but it’s arguably only a temporary victory,” Yale-Loehr said. “A lot will depend on the outcome of the presidential election — or if Congress decides to enact a legislative solution to resolve this once and for all.”