WASHINGTON – The Supreme Court breathed new life into the endangered DACA program Thursday, ruling that the Trump administration’s attempt to end the program was arbitrary and capricious and must be reversed.
The 5-4 ruling by the sharply divided court means close to 650,000 immigrants who were in danger of being deported can breathe a sigh of relief – for now. Chief Justice John Roberts said that the administration can still terminate the Deferred Action for Childhood Arrivals program in the future, it just went about it the wrong way this time.
“The question in this case has always been not about whether the Trump administration could terminate DACA, because everyone agrees that it can,” Roberts wrote. “The question is whether the Trump administration went about it the right way here, and the answer is no.”
But in his dissent – one of three by court’s conservatives – Justice Clarence Thomas accused the majority of bowing to political pressure.
“Today’s decision must be recognized for what it is: an effort to avoid a politically controversial but legally correct decision,” Thomas wrote.
He agreed with a lower court that the DACA program was created by the Obama “administration without any statutory authorization … As a result, the program was unlawful from its inception.” That should have ended any debate about this administration’s decision to end the program, he wrote.
But the debate was far from over for Arizona lawmakers.
“Americans should be outraged by this decision and I urge President Trump and members of his administration to uphold the rule of law and fight against any amnesty to illegal immigrations,” Rep. Andy Biggs, R-Gilbert, said in a statement released by his office.
Rep. Raul Grijalva, D-Tucson, hailed what he called a “victory for the young immigrants who dared to dream” – a reference to the young immigrants protected by DACA who are also known as “Dreamers.”
“It’s a victory for those who fought from childhood and well into their adult lives to send a message that they have every right to exist in the only home they have ever known,” Grijalva said in a statement. “It’s a strong rejection of one of President Trump’s central ideas of his presidency that seeks to rewrite America’s immigrant heritage and demonize those who don’t look like him.”
The Trump administration did not appear ready to back down, however. Joseph Edlow, the deputy director for policy at U.S. Citizenship and Immigration Services, said the “opinion has no basis in law and merely delays the President’s lawful ability to end the illegal Deferred Action for Childhood Arrivals amnesty program.”
“The fact remains that under DACA, hundreds of thousands of illegal aliens continue to remain in our country in violation of the laws passed by Congress and to take jobs Americans need now more than ever,” said Edlow, whose agency approves DACA applications. “Ultimately, DACA is not a long-term solution for anyone.”
The Deferred Action for Childhood Arrivals began in 2012 under President Barack Obama, after Congress repeatedly deadlocked on attempts at immigration reform.
Under the program, immigrants who were brought to the country illegally while they were still children could apply for deferred deportation – as long as they had clean records, were in school or the military, paid a fee and met other requirements. DACA protection lasted for two years and could be renewed, during which time recipients would get drivers licenses, work authorizations and other official documentation.
Close to 700,000 migrants were ultimately protected by the program. The Migration Policy Institute estimates that there were 644,000 DACA recipients in the U.S. as of March, with just under 24,000 of them in Arizona.
But critics accused the Obama administration of executive overreach and charged that the program rewarded illegal behavior. Then-candidate Donald Trump made DACA a part of his anti-immigrant campaign rhetoric in 2016.
After Trump took office, then-Attorney General Jeff Sessions in September 2017 determined that DACA had been enacted illegally and he advised the Department of Homeland Security to “wind down” the program, halting new applications and letting existing protections expire. One day later, the DHS secretary did just that.
That decision was immediately challenged in federal courts, at least four of which blocked some or all of the rescission.
But while recipients have been allowed to apply for renewal of DACA protection, the ongoing court fight left them in limbo. Ken Cuccinelli, the acting director of U.S. Citizenship and Immigration Services said this month that the government would seek to begin deportations if the Supreme Court’s ruling went its way.
But the court did not rule Cuccinelli’s way.
Roberts wrote that even if DHS determined that DACA was illegal, it could not just end the program without taking into account the impact on recipients who have “enrolled in degree programs, embarked on careers, started businesses, purchased homes, and even married and had children,” while relying on DACA protection. He also pointed to the potential economic impact of hundreds of billions of dollars in lost sales and taxes to businesses and governments.
The Migration Policy Institute says that 66,000 children who are qualified for DACA assistance have been blocked since the wind-down of the program was announced in September 2017. MPI also estimates that 1,326,000 could immediately apply for DACA, about 35,000 in Arizona.
Whether they will be able to is unclear. After the court’s ruling Thursday, Trump tweeted “As President of the United States, I am asking for a legal solution on DACA, not a political one, consistent with the rule of law.”
To Biggs, the path forward still includes ending DACA.
“Thankfully, no justice found that DACA could not be rescinded if the APA issue was corrected,” Biggs said of the court’s ruling.
Grijalva agreed that “this ruling is not the end,” but he called on Congress to protect DACA from future attacks by making it law.
“It’s time for Congress to take legislative action to ensure that DACA recipients, Dreamers, and TPS (Temporary Protected Status) and DED (Deferred Enforced Departure) recipients have a pathway to citizenship that they deserve,” he said.
Advocates were calling for even more action Thursday. On a conference call after the ruling, representatives of United We Dream, the National Immigration Law Center, the UndocuBlack Network and other groups pushed for permanent DACA protection, defunding immigration and border agencies, voting Trump out of office this fall.
“We know that citizenship is not enough to protect or give us freedom, it just legitimizes us on paper,” said Patrice Lawrence, national policy and advocacy director for the UndocuBlack Network. “We need collective freedom in this country and justice for all of us.”
-Cronkite News reporters Ellie Borst and Farah Eltohamy contributed to this report from Phoenix.
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