Four days before the U.S. Supreme Court heard the final arguments in a case deciding the fate of some 700,000 undocumented U.S. residents, a crowd of families, students and activists gathered at the Santa Cruz Town Clock with pickets emblazoned “Home Is Here.”
Here, the politics of a small town met those of the nation. Organized by the local chapter of United We Dream (UWD), a youth immigrant organization boasting over 400,000 members across the U.S., the Nov. 8 demonstrations were one of a sea of strikes, walkouts and rallies the nation over. Their target — the Trump administration’s rollback of Deferred Action for Childhood Arrivals (DACA), an Obama-era policy that has allowed hundreds of thousands of young undocumented immigrants to live and work in the country.
“If [DACA is] ruled unconstitutional, then we will not be safe anymore,” said Brian Carreno, a UWD organizer and freshman at Kirby Preparatory School in Santa Cruz. “People will have to live in fear. They won’t go out.”
Since September 2017, the UC and the Department of Homeland Security (DHS) have been fighting a protracted legal battle for the fate of the DACA program, an effort spearheaded by UC President and former DHS Secretary Janet Napolitano.
Five separate federal courts have ruled in favor of the UC, allowing thousands of DACA recipients to renew their status. On Tuesday, the U.S. Supreme Court heard arguments from both parties, laying the question at the feet of the conservative judiciary.
DHS v. UC Regents
Since its inception in 2012, DACA has allowed over 700,000 immigrants who previously lacked papers to find jobs and housing, join the military and pay for higher education in the U.S.
But Trump officials argue the DACA program was founded on illegal premises — that while DACA status permits an individual to live and work in the U.S., it does not make recipients legal residents. In their view, to continue administering DACA grants would be an overstep of executive power as doing so would place recipients above U.S. immigration law.
As it turns out, the Trump administration’s claim about the DACA program’s illegality formed the basis of the UC’s lawsuit against the Department of Homeland Security (DHS). Submitted days after the Trump administration’s announcement, the suit alleges the DHS violated “both the procedural and substantive requirements of the APA (Administrative Procedure Act), as well as the Due Process Clause of the Fifth Amendment.”
Since the Trump administration is pursuing an end to DACA because it views the program as illegal, rather than just bad policy, the question has become one of interpreting the law — a question for the judiciary.
One federal court that has ruled in favor of the UC issued a court order compelling the DHS to resume DACA services. As a result, some 117,000 DACA recipients have been able to renew their grants for the next two years, according to a report released by U.S. Citizenship and Immigration Services.
Yet the court order doesn’t compel the DHS to grant DACA status to the Dreamers who came of age during the Trump administration. Without authorized residency, these 15- to 18-year-olds are caught between the cracks of immigration policy. Most are unable to pay for college, and none are able to find legal work, join the military or travel outside the country.
“I was looking forward to my 15th birthday in order to apply for DACA,” said Ines Martinez, a Soquel High senior, UWD member and 15-year resident of the U.S. “But since that was taken away, I haven’t been able to work or save up. […] As of right now, I can’t afford college, or any type of university, or afford a car or anything where I can contribute to my family.”
The Supreme Court is faced with two questions. Is the end of DACA something the courts can rule on? And if so, was the DHS’s decision to wind down the DACA program legal?
“No” to the first, the conservative justices seemed to say on Nov. 12. In his line of questioning to DHS representative U.S. Solicitor General Noel Francisco, Justice Brett Kavanaugh drew parallels between the DACA case and the court’s 1985 ruling in Heckler v. Chaney. In that case, the Supreme Court found that in certain scenarios where federal agencies refuse to enforce laws, the agency’s decision shouldn’t be subject to judicial review.
So what does this mean for the Dreamers?
If the court decides the case is unreviewable, they will likely revoke the court order requiring the DHS to renew DACA grants. DACA recipients would no longer be able to renew their status, and new applicants would be denied.
The court expressed willingness, however, to honor the status of those who hold renewed DACA grants. Chief Justice John Roberts suggested that if the DHS were to wind DACA down, they would do so without revoking the status of hundreds of thousands of recipients at once.
“It’s not always the case when the government acts illegally in a way that affects other people that we go back and untangle all the consequences of that,” Roberts said.
If the court decides to take this route, it would be off the hook for ruling on the DHS decision’s legality. Nothing would stop the next administration from starting another DACA-like program.
But if the court rules the case reviewable, the implications would be unclear for the Dreamers. The nine justices would then be left to decide if the Trump DHS broke the law. If they find this to be the case, the DHS would likely be compelled to renew and approve new grants. If they don’t, the Dreamers will have to look for a legislative solution to grant them citizenship.
The court will rule on the case before the end of its current term in June 2020.