WASHINGTON (CN) — Hundreds of protesters set up rainy camp Tuesday in front of the Supreme Court as the justices dived into President Donald Trump’s abrupt abandonment of a program that protects qualifying young immigrants from deportation.
The move two years ago brought turmoil for some 787,580 people participating in the program know as DACA or Deferred Action for Childhood Arrivals.
Representing one such beneficiary named Dulce Garcia before the high court this morning, Gibson Dunn attorney Theodore Olson said the government had failed to provide accurate, rational and legally sound logic for repealing the policy. Olson said the Administrative Procedures Act demands more than the attorney general’s bare assertion that DACA was an unconstitutional exercise of authority by the executive branch, especially given the enormous impact of the policy reversal.
The lawyer replied no when Justice Samuel Alito asked Olson if tightened guidelines under prosecutorial discretion would be reviewable, emphasizing that this agency decision differed since former President Barack Obama created DACA following explicit congressional direction.
“That’s what DACA was all about,” Olson said. “It said it did not establish any status, it did not provide any benefits, it articulated an enforcement priority, which Congress not only direct DHS to make, but in fact, require it to make
As U.S. Solicitor General Noel Francisco made his argument, Justice Sonia Sotomayor dug into on where the government offered a reasoned explanation regarding DACA to satisfy the upheaval such a decision caused to hundreds of thousands of people relying on the program.
“Where is all of this really considered and weighed,” Sotomayor asked. “And where is the political decision made clearly? That this is not about the law; this is about our choice to destroy lives.”
Francisco pivoted to Obama here.
“I think that the prior president didn’t, couldn’t and hasn’t made any kind of promise that DACA would remain in effect in perpetuity because it would have been impossible to make that promise,” he said. “In fact, every one of my friends on the other side, I think, has agreed that we could rescind DACA at any time if, at least in their view, we did provide a little bit more detailed of an explanation.”
Justice Stephen Breyer tackled the so-called reliance issue as well, noting that more than 145 businesses, 66 health care organizations, and 108 cities and municipalities had interests in the program.
Francisco said the Department of Homeland Security addressed reliance interests in 2017 with a memo by then-Secretary Kirstjen Nielsen.
Though Kagan said she believed Nielsen had discussed these interests with regard to the rule’s legality, Francisco said the fact the rule could be illegal outweighed the reliance interests on the rule.
“First, because she sets forth separate and independent bases justifying the rescission: first her belief that it’s illegal; second, her belief that there are serious doubts about its illegality; and third, her conclusion that as a matter of enforcement policy, the Department of Homeland Security is against these kinds of broad-based nonenforcement decisions,” Francisico said. “Any one of those, as her memo explicitly says, is a separate and independent reason.”
California Solicitor General Michael Mongan, representing some of DACA’s state supporters, told Kagan that courts could still review the DACA decision even if the legality of the program was in question.
“It would be presumptively reviewable, as most agency actions are,” Mongan said. “I think it would be challenged and the challengers would likely argue that there are sufficient general standards in this area to allow for a minimal level of rationality review.”
DACA offered various benefits to immigrants who were under the age of 16, had lived in America continuously and never been convicted of a crime, and met various other stipulations. Applicants were required to submit their fingerprints to Homeland Security, along with other biometric information and nearly $500 in fees to participate, with the option to renew such status every two years.
Against intense pushback over his abandonment of the policy, Trump has since used the program as a bargaining chip to facilitate funding for his long-promised border wall.
Trump reiterated through Twitter as arguments got underway this morning that a “deal” would be made to allow DACA recipients to remain in the country, even if the Supreme Court upholds the program’s rescission.
“Many of the people in DACA, no longer very young, are far from ‘angels,’” Trump tweeted. “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.”
Senate Minority Leader Chuck Schumer said on the Senate floor Tuesday, the DACA program had changed the lives of thousands of immigrants for the better, making America better in the process. He called it despicable of Trump label DACA recipients as the cause of the country’s issues.
“President Trump’s hypocrisy, when it comes to Dreamers, knows no bounds,” Schumer said, using a nickname coined for DACA beneficiaries after a similar piece of bygone legislation. “After flip-flopping again and again and again on the issue — after failing to lead an effort to pass comprehensive immigration reform — it’s abjectly shameful that President Trump is trying to get the Supreme Court to do his dirty work and put the Dreamers under threat of mass deportation.”