DACA Before the Supreme Court

Supporters of Deferred Action for Childhood Arrival program (DACA) demonstrate on Pennsylvania Avenue in front of the White House in Washington, Saturday, Sept. 9, 2017. President Donald Trump ordered and end of protections for young immigrants who were brought into the country illegally as children, but gave Congress six months to act on it. (AP Photo/Pablo Martinez Monsivais)

On November 12th, the United States Supreme Court will hear oral arguments in the case of the Department of Homeland Security vs. Regents of the University of California.  It is consolidated with two other cases contesting the Trump administration’s decision to terminate the DACA program that affects the children of parents brought into the United States illegally.

This case originates out of the liberal Ninth Circuit with the two others coming from the Second and the DC Circuits.  The decision, in this case, will separate the men from the boys, so to speak when it comes to immigration law enforcement.  This is probably one of the biggest cases not only for the Trump administration but also for the Roberts Court.

As everyone is painfully aware, DACA was “enacted” by the Obama administration that “deferred” immigration status proceedings, including deportation, for any person under a certain age that entered the country in certain years.  According to liberal websites, the policy has allowed approximately 800,000 individuals to “live outside the shadows.”  This was done under the ruse of a wide-ranging concept called “prosecutorial discretion.”  Simply, the government up to that time either lacked the resources or just did not place a priority on those whom DACA specifically affected.

The Southern Poverty Law Center has weighed in describing DACA as “temporary relief from deportation and work authorization.”  The mere fact they are fighting the Trump administration’s decision to rescind DACA years after its adoption clearly indicates that DACA is not “temporary.”  The mere fact that they and others now claim the predicted harms to at least 800,000 indicates that DACA was never intended to be temporary.

What the immigration activists fail to realize is the illegality of DACA in the first case.  Today, they argue that the rescission of DACA violates federal law, specifically the Administrative Procedures Act since there was no public comment period before its rescission totally ignorant of the fact there was no input by the public when DACA went into effect under the Obama administration.  Regardless, the Trump administration argues that DACA was unconstitutional from the start since immigration law is the purview of Congress.  The opponents argue that DACA was necessary because Congress refused to act and the Executive Order thus became necessary.  This is nothing but circular logic that makes no sense.

The Supreme Court must first get beyond the question of whether courts even have jurisdiction in the issue.  If the Court decides the plaintiffs in the original cases have no standing, then the entire case is thrown out and the decision to rescind DACA remains in place.  In essence, the Court does not even have to reach the merits of the case- namely, whether the decision to wind down DACA is lawful.  Assuming they do not reach the merits, the original plaintiffs lose regardless due to lack of standing.

But everyone expects the Court to move beyond that peccadillo and rule on the merits.  Here the words of Obama may come back to haunt this case.  It was he himself who said on many occasions that he lacked the Constitutional authority to grant an amnesty of DACA’s scope.  He did nevertheless citing prosecutorial discretion.  This “excuse” is simply false.

The DHS, whether under Bush, Obama or Trump, spent scant resources removing noncriminal unauthorized immigrants because they considered them a low priority for removal.  Under the rubric of prosecutorial discretion, they are justifying DACA when the unrealized fears of those affected by DACA were just that- unrealized.  Instead, DACA was an immigration policy decision that beneficiaries of the program could live and work in the United States without an unfounded fear of removal.

However, this policy decision was at odds with the rightful wishes of Congress who on several occasions refused or failed to act on many incarnations of a dreamer act.  Congress has spoken in the area of immigration law on many occasions.  The Immigration and Naturalization Act specifically states who can or cannot be in the country and who can or cannot work in the country.  In fact, those reasons are spread over 40 different classifications of visas.  When Congress writes a rather clear law declaring someone unlawfully present, the Executive cannot, through a signature, declare the exact opposite.  Further, DACA grants work privileges to people specifically excluded by Congress.  And it gives DACA recipients a backdoor pathway to citizenship foreclosed to others and by the exact procedures Congress set forth.

Dressing it up in the language of prosecutorial discretion is no defense of the policy.  The argument that any president is not obligated to deport anyone or those previous presidents did not deport anyone is not a justification for legislation by executive fiat.  There is a clear line between prosecutorial discretion and legislation.  Clearly, DACA is on the wrong side of that line.  Not only does it codify the fact that someone will not be deported, but it also confers upon them very substantive benefits such as work authorization and lawful presence in the country.  Benefiting 800,000 with the stroke of a presidential pen which leaves immigration authorities no discretion is a very far cry from a case-by-case decision to deport someone.

As stated earlier, if the proponents want to go down the APA road and argue that Trump’s decision to rescind DACA occurred with no public input, they should be reminded that Obama signed the DACA Executive Order with no public input.  In numerous court filings, the defenders of DACA have admitted that the program has bestowed “numerous important benefits” upon the program’s beneficiaries.

They are contesting DACA’s rescission because they do not want to lose those benefits on one hand while arguing that no such benefits exist because this is simply a case of prosecutorial discretion.  The stark reality is that DACA is an unlawful rule that bestows substantive benefits on thousands of people Congress specifically foreclosed those benefits to through legislation.  DACA, if left to stand, would make a mockery of the concept of separation of powers.

The rightful place to resolve this issue is in Congress, not the Oval Office.  President Trump has, on many occasions, signaled his willingness to work with Congress to resolve the issue.  Repeatedly, he has been shot down with obstruction, resistance, recalcitrance and unrealistic demands from Democrats and their leadership.

This writer cannot see how the Trump administration loses this case before the Supreme Court.  Of course, it will be a close 5-4 vote because the liberals on the Court will circle the wagons and Sonia Sotomayor will write a tear-jerking dissent.  Whether on the standing issue or the merits of the case, DACA is bound to fall.  Besides commonsense, Trump has the Constitution on his side.

Any decision to the contrary would be a travesty for Constitutional democracy.  And if the Roberts Court rules in favor of the DACA proponents it may go down as one of the worst decisions in the history of the Supreme Court.