“Where’s the political decision that was made that this not about the law, but about our choice to destroy lives?” Justice Sonia Sotomayor asked.
Justice Elena Kagan said Sessions’ opinion impacted the decisionmaking about DACA in a way that made it hard to know what former Homeland Security Secretary Kirstjen Nielsen would have done without the attorney general’s declaration that former President Barack Obama’s policy was illegal.
“Everything is wrapped up together,” Kagan said. “We really don’t know how she would have conducted that balance, how she would have weighed those…if the legal had been taken away.”
Kagan dismissed Nielsen’s assessment of the impact of the policy as “a conclusory statement.”
Near the end of the roughly 80-minute argument session, Solicitor General Noel Francisco seemed to take the liberal justices up on their invitation, declaring that the administration was prepared to accept the political consequences of its decision.
“We own this,” Francisco said.
Francisco also said the courts have more power to look at policies limiting enforcement than those which step up enforcement, like ending DACA.
“We are not not enforcing the law. We’re enforcing the law,” he said.
Francisco insisted ending DACA did not take away any benefits from recipients because the work permits expire every two years and would simply not be renewed under the Trump policy, which lower courts barred from taking effect. He also said that the courts should give only “extremely limited” weight to the way recipients, their families and employers have relied on the DACA policy because it was never an open-ended guarantee.
“These benefits are allowed to expire on their own, Francisco said. “I don’t think anyone could reasonably assume that DACA was going to remain in effect in perpetuity.”
Sotomayor scoffed at that notion.
“There’s a whole lot of reliance interests that weren’t looked at, including the…current President telling DACA-eligible people that they were safe under him and that he would find a way to keep them here,” she said. “And so he hasn’t and, instead, he’s done this.”
DACA backers were looking to Chief Justice John Roberts as a potential swing vote to reverse the Trump policy, in part because Roberts made a similar move in June when he joined the court’s four Democratic appointees to reject the Trump administration’s attempt to add a question about citizenship to the 2020 Census.
But there wasn’t much from Roberts Tuesday to give hope to DACA supporters. At one point, he argued that Obama’s policy was unprecedented, if not illegal, because the number of people affected was much larger than similar actions by past administrations.
“That history is not close to the number of people covered by DACA,” Roberts said.
While DACA recipients have painted Trump’s revocation of the policy as opening them to deportation, Roberts emphasized that the program was not about lifting the threat of deportation, but about eligibility for benefits like permission to work legally in the U.S.
“The whole thing was about work authorization and various other benefits,” Roberts said. “Both administrations have said they are not going to deport the people.”
Several justices including Roberts suggested there was little point in sending the decision back to be made again, given the Trump administration’s commitment to ending the program.
However, lawyers backing the DACA program said Homeland Security officials might actually reach a different result if they had the decision to make over without an effective legal mandate created by Sessions’ opinion.
“We don’t truly know what the agency would do if confronted with a discretionary choice,” said California Solicitor General Michael Mongan, representing states and local governments supporting DACA. “If they knew that DACA were lawful, there’s a new Secretary, and the administration has expressed broad sympathy for this population, and they very well might continue the policy or stop short of wholesale termination.”
Several conservative justices compared the decision to end DACA to a tough-on-crime prosecutor deciding to revise guidelines his or her predecessor might have used about when to bring a drug case. Lawyers for DACA supporters acknowledged such a decision to step up enforcement would not be something to sue over.
“Every new attorney general establishes new enforcement priorities with respect to pornography or drug cases or things like that,” said Ted Olson, a solicitor general under President George W. Bush.
“That’s completely different than this,” Olson added, pointing to the individual grants of DACA status and the accompanying benefits.
The long-term U.S. residents who benefit from DACA — so-called Dreamers — have rallied to preserve the program, arguing that they usually had no role in their parents’ decision to bring them to the country and are now essentially Americans in nearly all ways, except for their legal status.
The Dreamers, many of them high school and college students, have gotten a sympathetic reception even from some harsh opponents of illegal immigration, but legislation to address their plight has been bogged down for more than a decade.
Trump has decried the court rulings blocking the decision to rescind DACA and has argued that they halted the political momentum to pass legislation that could have offered so-called Dreamers long-term residency in the U.S.
Democrats contend that a legislative deal faltered early last year not because of the court decisions, but because conservative lawmakers and talk-show hosts pilloried the proposed compromise, prompting Trump to back away from the outlines of a package he had previously agreed to.
With DACA proponents urging that the issue be returned to the Department of Homeland Security for another decision, Justice Neil Gorsuch seemed to allude to the contention that the litigation over DACA was making it harder to reach a political resolution of the question.
“It would leave this class of persons under a continuing cloud of uncertainty and continue stasis in the political branches because they would not have a baseline rule of decision from this court, still, on this issue,” Gorsuch said.
Just before Tuesday’s arguments, Trump sent out a tweet that simultaneously painted DACA recipients as dangerous and promised to work out a way for Dreamers to remain in the U.S. even if his decision to end the program is upheld.
“Many of the people in DACA, no longer very young, are far from ‘angels,’” Trump wrote. “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!”
Foreigners with a felony conviction or extensive misdemeanor records are ineligible for DACA and can be removed from the program if they commit crimes after obtaining DACA status. Official statistics show 850 DACA recipients had their status “terminated” due to criminal or gang activity in fiscal year 2017.
The question before the Supreme Court Tuesday was not strictly speaking about whether the Obama administration acted legally when it set up the program in 2012, but is instead over how the Trump administration attempted to dismantle it.
In 2016, the high court heard a challenge to conservative states brought to an expansion of the DACA program to cover more individuals who came to the U.S. as children, as well as undocumented parents of U.S citizens.
The high court, shorthanded due to the unexpected death of Justice Antonin Scalia, deadlocked, leaving in place an appeals court ruling blocking the expanded program but not disturbing the original DACA.
In the recent Census case, Roberts did not dispute the administration’s authority to change the Census forms, but concluded that the official explanation the administration gave for the additional question was “contrived” — in essence, a sham.
The current legal battle over DACA involves a similar claim that the rationale the Trump administration offered for ending the program — a new lawsuit that conservative states were threatening but never filed — is too flimsy to justify the decision.
Justice Department lawyers defending the decision have argued that there is no legal basis for the courts to review an executive branch decision to drop a program like DACA that was itself set up through executive action by a prior administration.
The Trump administration also contends that concerns about future litigation against DACA were a sufficient basis for the move Sessions announced in September 2017 to wind down the program by stopping renewal of the two-year-long work permits issued to recipients.
The justices appear to have observed the political tussle and preferred the fight over the Dreamers to be resolved that way. The Trump administration first asked the high court to weigh in back in January 2018, after the first rulings against the DACA wind-down, but the justices declined. They said they would follow the customary course of awaiting a decision from one or more appeals courts before deciding whether to take up the issue.
The Justice Department brought the dispute back to the court a year ago, but the justices displayed their reluctance to get involved by sitting on those petitions for almost a full term, before finally agreeing in June to take up the matter this fall.
The sluggishness by the justices gave Trump and Democrats more time to work out a legislative compromise, but with those efforts apparently dead, the delay means a potentially politically explosive decision by the high court is likely next spring or as late as the end of June— just as Trump’s reelection bid is ramping up.
The cases going before the court were filed by DACA recipients, four liberal states, local governments and the University of California, all of whom said they would be harmed by the Trump administration’s move to end the program.
Olson was flanked at the counsel table by an attorney who is a Dreamer himself, Luis Cortes. The 31-year-old graduate of the University of Idaho law school was born in Mexico and came to California at the age of one with his parents, who were seeking work.