Posted by Faye Kolly
On November 12, 2019, the DREAMs of thousands of young immigrants remain in the balance as the Supreme Court hears oral arguments on the whether the Deferred Action of Childhood Arrivals program (DACA) will remain in place or if the Supreme Court will grant the government’s bid to end the program. The justices will consider three consolidates cases: Dept. of Homeland v. Regents Univ. CA (18-587), Trump, President of U.S. v. NAAP (18-588) and McAleenan Sec. of Homeland v. Vidal (18-589).
Each of the consolidate cases argue against the government’s position to end the program as a violation of the Administrative Procedures Act (APA), claiming that the decision to end the program as “arbitrary and capricious”—meaning that there is not a rational basis or proper consideration of the impact of the decision on the nearly 700,000 beneficiaries of the DACA program. The government maintains that its decision to end the program is not reviewable by the court, claiming that it is required to dismantle DACA because it was “unlawful from the start.” While the government maintains that there are other interests to end the program, its primary rationale is that DHS’s action to end the program is within the agency’s sole discretion.
In accepting the case(s) the Supreme Court has agreed to render a decision two questions: whether the decision to end DACA is reviewable by courts and, if the decision is reviewable, if that decision to end DACA is legal under the Administrative Procedure Act. The question as to reviewability will rely on whether the Court will accept the government’s conflicting position that DACA is both a matter of discretion and a matter of law.
Long-time CEO and Managing Partner, and now Of Counsel, Ruth Lozano McChesney, and I penned an amicus curiae on behalf of the Mexican Government in support of DACA to the Supreme Court. The brief asserts that the Federal Government of Mexico has a vested interest under international law in protecting vulnerable groups of its citizens living abroad. In fact, nearly 80% of DACA recipients are Mexican citizens who were brought to the United States by their parents at very young ages and through no fault of their own.
The Government of Mexico further cites international covenants and human rights protections and emphasizes that the termination of the DACA program will exacerbate the vulnerable position of immigrant youth by taking away the ability of the beneficiaries of the program to work, maintain a social security number, driver’s license and ability to start their own businesses. The brief explains that rescission of the program will adversely affect the health and well-being of families, the U.S. Citizen children of DACA recipients and the communities in which these young people live and work. The contributions of DACA beneficiaries are substantial including the financial positive impact to the U.S. economy (its elimination would result in an estimated loss of $60.3 billion from the GDP over a ten-year period; and an estimated loss of $39.3 billion from Social Security and Medicare funds over the same period).
While the fate of the DACA program is unclear there are a few key issues to look for during questioning and answering during oral arguments that may demonstrate how the court considers the case. The first are questions related to the motivation behind the government’s decision to end DACA. In Department of Commerce v. New York (18-966), the Supreme Court, found that the government’s rationale to include questions regarding citizenship status in the next census were not related to the purpose of strengthening enforcement of the Voting Rights Act. This decision written by chief Justice Roberts is significant, as it may inform the decision for the DACA case. Questions and answers that the court in relation to the above-mentioned case may consider are:
01. Related to tying the fate of the program to border wall funding, or the administration’s shifting support of the program;
02. Historical exercises of prosecutorial discretion in extending reprieves of deportation to other groups of immigrants; and
03. Whether the eligibility requirements for DACA are designed to lead to a case-by-case evaluation of eligibility will be key considerations for the court.
In looking toward an outcome, the Court may directly rule on the lawfulness of the administration’s cancellation of the program, or it may provide the government with instructions for the proper ending of DACA. It may even decide on whether an agency such as DHS may end or begin a program such as DACA. While a decision is not expected until next spring or summer, young immigrant beneficiaries of the program and their advocates will continue to press for a long-term legislative solution, as even a favorable outcome at the Supreme Court will not guarantee a long-term resolution.
DACA recipients and their allies, irrespective of the outcome of the Supreme Court decision will continue the march toward a solution that will transform the current fragility of their circumstance toward a more permanent solution to that will bring to full fruition our collective values regarding family unity, firm economic contributions, cross-cultural understanding and the realization of the American Dream that each DACA recipient brings. While the Supreme Court decision is important, it is not a solution. While we await a decision, we cannot pause in our commitment toward a path of lawful permanent residency for DACA recipients.