Supreme Court weighs fate of 'Dreamers,' and Trump's promises, in fiery DACA arguments

Key Points
  • The Supreme Court hears arguments in a set of blockbuster cases over whether President Donald Trump may terminate an Obama-era immigration program that shields young immigrants from deportation.
  • DACA, or Deferred Action for Childhood Arrivals, protects about 700,000 "Dreamers."
  • The justices look likely to allow the president to end the program, with Trump appointees Justices Neil Gorsuch and Brett Kavanaugh leaning in favor of the administration alongside the court's three other conservatives.
A DACA recipient who was brought to the U.S. when she was 4-years-old, speaks during a rally in support of a permanent legislative solution for immigrants in Los Angeles, California, February 3, 2018.
Monica Almeida | Reuters

WASHINGTON - The Supreme Court heard arguments on Tuesday in a set of blockbuster cases over whether President Donald Trump may terminate an Obama-era immigration program that shields hundreds of thousands of young immigrants from deportation and allows them to receive work permits.

At the end of 80 minutes of extended argument, the justices looked likely to allow the president to end the program, with Trump appointees Justices Neil Gorsuch and Brett Kavanaugh leaning in favor of the administration alongside the court's three other conservatives.

Chief Justice John Roberts, though, who has at times split with his fellow conservatives in cases involving the Trump administration's executive actions, could be unpredictable. It is not always possible to tell how justices will vote based on their questions at oral argument.

The court's four Democratic appointees expressed opposition to allowing the president to end the program, using at times heated language.

Read more: How Obama's border enforcer Janet Napolitano is fighting Trump on immigration at the Supreme Court

The case is one of the most high-profile disputes of the term and will affect millions of immigrants and their family members. A decision is expected by the end of June, in the midst of the 2020 presidential election.

The court's conservatives suggested that ending the program, which was implemented in 2012 by then Department of Homeland Security chief Janet Napolitano, fell within the administration's discretion.

"I hear a lot of facts, sympathetic facts you put out there, and they speak to all of us," Gorsuch said to Theodore Olson, one of the attorneys opposing the termination of DACA.

But he pressed Olson for a "legal limiting principle" defining when the government may reverse itself in a matter in which it has some discretion. Gorsuch noted a decision in favor of DACA recipients could have implications for the marijuana industry, which has grown at the state level despite violating federal law.

Olson argued that the administration failed to fully consider the consequences of ending the program on both individuals and businesses.

The court's liberals, particularly Justices Sonia Sotomayor and Stephen Breyer, suggested that the Trump administration did not adequately consider the effects of rescinding the program when it did so in 2017. To date, that action has been halted by lower courts in New York, California and Washington, D.C.

Sotomayor suggested that comments from Trump himself that were sympathetic to those under the program may have hurt the administration's arguments, by "telling DACA-eligible people that they were safe under him and that he would find a way to keep them here."

"He hasn't and, instead, he's done this," Sotomayor said. "And that, I think, is something to be considered before you rescind a policy."

Breyer told Solicitor General Noel Francisco, the administration's attorney, that he had his clerks count up all the various impacts, on hundreds of businesses, educational institutions, religious organizations and others, that ending DACA would inflict.

By his tally, it was 66 health-care organizations, three labor unions, 210 educational associations, six military organizations, three homebuilders, 108 municipalities and cities, 129 religious organizations and 145 businesses said they had interests in the case.

He suggested that the administration did not fully think through the consequences on all those parties.

Kavanaugh, though, seemed to think otherwise. Later in the argument, Kavanaugh chided California's solicitor general, Michael Mongan, for suggesting that the administration did not carefully consider its rationale for ending DACA. Mongan had called the administration's explanation "boilerplate."

"I assume that was a very considered decision. We can agree or disagree with the merits of it," Kavanaugh said.

The justices also pressed Francisco on the shifting explanations for ending DACA.

The Trump administration first announced its intention to wind down DACA in a 2017 memorandum issued by then acting Homeland Security Secretary Elaine Duke. That memorandum cited then Attorney General Jeff Sessions' conclusion that DACA was unlawful and so the administration could not enforce it.

In response to ongoing litigation before the U.S. District Court in Washington D.C., the administration expanded on its reasoning for ending the program in a second memorandum a year later. The second memorandum, issued by then Homeland Security Secretary Kirstjen Nielsen, also reasoned that DACA was unlawful but added that the administration opposed it regardless of whether it was against the law.

The administration would have an easier legal case to make if they opposed DACA on policy grounds, rather than as a matter of executive overreach by Obama.

But the Trump administration has largely declined to do so, and the president has gone back and forth on support for the "Dreamers," as those protected by DACA are sometimes known. Polls show that both Republicans and Democrats are generally sympathetic to those protected by the program.

Just before arguments began, Trump wrote in a post on Twitter that many DACA recipients were "tough, hardened criminals" but that he would make a deal with Democrats to allow them to stay in the country if the Supreme Court ruled in his favor. To qualify for DACA, immigrants cannot have been convicted of a serious crime.

Trump tweet

Justice Ruth Bader Ginsburg said on Tuesday that the second memo was "infected by the idea that [DACA] is illegal" and accused the administration of "trying to put the blame on the law."

If the reason for ending DACA was policy and not law, she said, then the administration would have to own the consequences of ending it.

Francisco said that the Trump administration did.

"We own this. We both own the policy rationale set forth in Secretary Nielsen's memorandum," he said.

Marielena Hincapie, the executive director of the National Immigration Law Center, which brought one of the lawsuits before the top court and who was present for arguments, said one takeaway was that the court's conservatives and liberals both seemed to understand the gravity of the issue. 

She said that one likely situation will be "some legal ping pong," in which the justices send the case back to the lower courts, and the Trump administration then produces another memorandum with a new rationale for terminating DACA. That action would likely be challenged again. 

"The requirement under the [Administrative Procedure Act] is that the rationale the agency provides needs to be contemporaneous with the decision-making, and I think that is probably where the administration will fall short," she said. 

The cases are Department of Homeland Security v. Regents of the University of California, No. 18-587; Donald Trump v. National Association for the Advancement of Colored People, No. 18-588, and Kevin McAleenan v. Martin Jonathan Batalla Vidal, No. 18-589.

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