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The Supreme Court heard arguments Tuesday on President Trump’s move to end protections for migrants brought to the U.S. illegally as children.The Obama-era program, known as DACA, currently blocks some 660,000 people from deportation. National Law Journal’s Marcia Coyle and Bipartisan Policy Center’s Theresa Cardinal Brown join Amna Nawaz to discuss the legal considerations and potential fallout.
The United States Supreme Court has heard the legal case, and now hundreds of thousands of young immigrants will wait to learn their fate.
They are the so-called dreamers, brought to the U.S. illegally as children. At issue is President Trump's move to end DACA, the Obama era program that protects them against deportation.
Amna Nawaz begins our coverage.
Hundreds of young immigrants rallied outside the Supreme Court this morning.
Jose Arnulfo Cabrera:
I'm coming here to make sure that the justices know that they have to stay on the side of justice today.
DACA recipients were anxious as justices inside heard arguments that could decide their fate.
DACA has been an opportunity to liberate our passions, unleash our dreams and use them for the good of our community and the country that we all call home.
DACA, formally known as Deferred Action For Childhood Arrivals, is shielding roughly 700,000 so-called dreamers from deportation.
To have a lawful system of immigration that serves the national interest, we cannot admit everyone who would like to come here.
The Trump administration attempted to end the program in 2017, but was prevented from doing so by lower courts.
And, today, justices heard arguments on the legality of that decision. The administration says President Barack Obama exceeded his constitutional powers when he created the program. Plaintiffs say the administration has failed to give adequate reasons for ending it. The program protects immigrants who arrived to the country at a young age before June 2007, are enrolled in school or have a GED, and have no criminal record.
President Trump vowed to end the program during his 2016 campaign, then showed sympathy for dreamers soon after taking office.
President Donald Trump:
We're going to show great heart. DACA is a very, very difficult subject for me, I will tell you. To me, it's one of the most difficult subjects I have, because you have these incredible kids, in many cases, not in all cases.
But on Twitter today, he wrote DACA recipients were — quote — "far from angels," calling some tough, hardened criminals.
Democrats decried Mr. Trump's words and called for justices to side with the young immigrants.
Rep. Joaquin Castro, D-Texas:
And despite the president's attempts to slander them, to speak ill about who they are and what they represent, these folks are among the very best that America has to offer.
The decision is expected by next June.
And now let's take a closer look at the arguments inside the court with Marcia Coyle of "The National Law Journal," who was at the court today, and Theresa Cardinal Brown, director of immigration and cross-border policy at the Bipartisan Policy Center.
Marcia and Theresa, welcome back to you both.
Theresa Cardinal Brown:
Glad to be here.
Marcia, let me start with you.
Now, it's a big issue, obviously, but one the justices could look at narrowly potentially. What is the central question or questions they're seeking to answer here?
OK, there are really two questions that they were wrestling with today.
The first one has to do with whether, as a court, they actually have the authority to review the decision to rescind or terminate the DACA program. And the second question has to do with whether, if they do have the power to review it, was that decision is legal, or did it, as the lower courts have held, violate the Administrative Procedures Act, which we may remember was figured last term in the census citizenship case.
It requires agencies to give a reasoned explanation for the decisions they make. And, in this case, the lower courts said, uh-uh, Trump administration, you didn't give reasoned explanations.
And so, very basically, the plaintiffs are saying,you didn't give us a reason. You have to do that.
What is the government's argument in this case?
The government is saying, first of all, that there is no authority to review what they have done here, that this is a decision to either enforce or not enforce a federal law, and that's a discretionary decision committed to each agency, unless there is a law that says otherwise.
On the legality of their decision, they claim that they gave adequate reasons. They had concerns about the legally. In fact, in 2017, then Attorney General Jeff Sessions said the program is illegal. And they also have a general opposition to non-enforcement of federal law, here, non-enforcement of federal immigration law against hundreds of thousands of undocumented immigrants.
Theresa, let me ask you about that.
We're talking about roughly 700,000 people, as we just laid out in the piece. What is important to know about that population, especially in light of what the president tweeted earlier today about many of them being hardened criminals? And what's the potential impact of the Supreme Court decision here?
So with regard to the president's tweet, first of all, it should be noted that, in order to get DACA status under the program rules, you can't have a felony conviction or more than three misdemeanors. So the idea that those who got DACA are somehow full of criminals, that is patently incorrect.
But these are people who, by the designation of DACA, have been in the United States for — since they were children, under 16 years of age. They have not committed crimes, and they have signed up for protection from deportation and work authorization.
And so this population are people who have grown up in the United States for the most part. They have American values. They think of themselves as American in every way. Since they have gotten this status and the ability to work, many of them have graduated college. They are now professionals, and doctors and lawyers. They have made plans. They have bought homes and had families.
And so the effect of the Supreme Court decision, if it were to agree with the administration in terminating the program, would mean that they would lose that status at the end of their current period, and then all of that would be in jeopardy.
And that's one of the reasons why you saw so many other parties engaging in this debate, businesses that are employing DACA individuals. One of the cases was filed by the University of California and supported by a lot of universities who have DACA students.
So there's a lot of the economy, if you will, and communities surrounding these students that are supporting them.
Marcia, let's look at some of the moments from inside that court today.
There was this one moment from Justice Sotomayor. She referenced President Trump's shifting views on this, as he's articulated it.
And she said this: "The president telling DACA-eligible people that they were safe under him, that he would find a way to keep them here. And so he hasn't, and, instead, he's done this. And that, I think, has something to be considered before you rescind the policy."
What does this tell us about how some of the more liberal justices are viewing this vs. some of the more conservative ones?
Well, first of all, what she was referring to was a key aspect of the argument today.
And that is the reliance that the dreamers have built up in a program that's been in existence since 2012. And she and even Justice Breyer pointed out there are lots of reliance interests, not just the dreamers' reline, but, as Theresa said, businesses have filed amicus briefs saying their employees are dreamers.
Medical institutions, health organizations, educational institutions all have shown how they have relied on dreamers in different respects. Justice Sotomayor was saying that that reliance is a key aspect of determining whether the administration gave adequate reasons for deciding to end the program.
Did they consider reliance in-depth, as they should? The liberals on the court, they seem to feel that, no, the administration didn't give adequate consideration of that.
The government says, in opposition, we did, and here are two memos that show that reliance was considered, along with other considerations.
That is a clear divide here. And how it will figure into an ultimate decision, we will have to wait and see.
Theresa, there's another moment in which Justice Gorsuch seemed to say that this continuing legal battle, the fact that this is still a question before the courts, is complicating a potential political solution.
Here's what he had to say — quote — "It would leave this class of persons into a continuing cloud of uncertainty and continued status in the political branches, because they would not have a baseline rule of decision from this court on this issue."
Is there even a political solution in the mix in Congress?
Well, what I would say is, first and foremost, we have to understand that the best outcome for DACA recipients at the end of this court case is another temporary reprieve.
If the Supreme Court were to rule that the administration didn't terminate the program appropriately, that doesn't mean the program won't be terminated. It just means the administration can go back and re-terminate it under the rules that this court sets out.
And this administration has indicated it wants to terminate the program. So I think that his question is about continuing to litigate this, and does that actually give any certainty? And the answer is, it doesn't.
The only certainty can come from Congress. The courts cannot give these people permanent status. Even the DACA program itself wasn't permanent status. That has to come from Congress. And Congress doesn't have to wait for a court decision to act. They could go right now.
They have tried. The president, when he announced the ending of the program in 2017, said he wanted to give Congress time to act. The House and the Senate considered bills in 2017 and 2018, failed to come to agreement with the president. And it didn't happen.
So now I think it does turn back to Congress. If this is going to be settled in a permanent way, it has to come from there.
Marcia, based on what you heard today, do you have a sense of which way the court is leaning?
Well, I never like to predict, but my sense was that there is not a fifth vote for the dreamers in this case.
Marcia Coyle of "The National Law Journal" and Theresa Cardinal Brown of the Bipartisan Policy Center, thanks for being here.
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