Supreme Court Hears Arguments Over DACA Program

Nov 12, 2019
Originally published on November 12, 2019 7:09 pm
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Will the U.S. Supreme Court determine DACA to be legal? The Deferred Action for Childhood Arrivals is an Obama era program that prevented roughly 700,000 young people, commonly known as DREAMers, from being deported. Under the program, those who were brought to the country legally as children could legally work and go to school if they met certain requirements and passed a background check. NPR legal affairs correspondent Nina Totenberg reports the court's conservative majority seemed inclined to let the Trump administration shut DACA down.

UNIDENTIFIED PROTESTERS: (Chanting) Say it loud. Say it clear. Immigrants are welcome here.

NINA TOTENBERG, BYLINE: Outside the courthouse, hundreds, if not thousands, of DACA recipients clogged the block, hoisting signs saying, home is here.

NEW: My name is New. I'm a family doctor. Today I'm one of almost 200 undocumented medical students and residents who - without DACA, we can't complete residency training. And without DACA, the health and well-being of all the families that we care for will also suffer.

ELIANA FERNANDEZ: My name is Eliana Fernandez. DACA is a program that forever changed my life, allowing me the opportunity to finish college and become a homeowner. My children deserve to stay with their mother in the place they call home.

TOTENBERG: Until now, these so-called DREAMers have been able to maintain their DACA status because the lower courts ruled that the Trump administration had not jumped through the legal hoops that are required when an administration revokes a policy like this, on which so many people, businesses and even the U.S. economy have relied. But inside the Supreme Court chamber, the court's conservative majority seemed far more sympathetic to the Trump administration's arguments. Solicitor General Noel Francisco opened the argument, telling the justices that they have no authority to review the policy change because DACA is a discretionary program under which the Obama administration used its prosecutorial discretion to defer deportations for certain qualified individuals. The court's liberals pushed back.

Justice Ginsburg - you're arguing this is not reviewable because it's committed to agency discretion. But on the other hand, you say the agency had no discretion because this program was illegal to begin with. The whole memo in which the administration justifies its policy is infected with the idea that DACA was illegal. Justice Sotomayor pointed to President Trump's conflicting remarks about DACA recipients, noting that Trump told the DREAMers they were, quote, "safe" under him, and then he abruptly ended the program.

But when the lawyers representing the DACA plaintiffs rose to argue, they got a fusillade of doubt from the conservative wing of the court. Chief Justice Roberts sought to minimize the number of immigrants covered by previous programs similar to DACA dating back to the 1950s. Other members of the conservative majority fired different rounds. Justice Alito - let's say an administration decides it's not going to prosecute drug cases involving more than five kilos of cocaine, and the next administration reduces that number to three kilos. Would that be reviewable by the courts? Lawyer Ted Olson replied that DACA is different because of the huge number of people and industries and businesses that have relied on the assurances in the existing program. If the government wants to change such a program, he said, it has to lay out its policy reasons, not just say by fiat the DACA policy was illegal from the get-go.

Justice Gorsuch - what more would you have the government say? What good would another five years of litigation over the adequacy of the explanation serve? Answer - we don't know what the administration would do. The administration did not want to own this decision. It was not an independent decision reached by the acting secretary of Homeland Security because DHS was bound by the attorney general's one-sentence decision saying DACA was illegal. In rebuttal, Trump administration lawyer Francisco batted that down, saying the administration has decided that even if DACA was and is legal, President Trump has decided to shut it down. We own this, he said.

Nina Totenberg, NPR News, Washington.

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