Symposium: The DACA cases may be the next big test for the Roberts Court

Dayna Zolle is Appellate Counsel and Brianne Gorod is Chief Counsel at the Constitutional Accountability Center.

Earlier this year, President Donald Trump made news when he suggested, repeatedly, that he views the Supreme Court as an ally, one he can count on to give him a “fair shake” when he thinks that other courts won’t. To the extent Trump thought that he could count on the court’s very conservative majority to always rule in his favor, last term’s decision in the census case should have given him pause.

Another big test of the president’s apparent belief that he has the Supreme Court in his back pocket is right around the corner: This term the court will hear challenges to the administration’s termination of the Deferred Action for Childhood Arrivals program, known as DACA. The president may ultimately be disappointed by the result in these cases — because if the Supreme Court follows the law and well established precedent, it will conclude, like the lower courts that considered these cases, that the administration’s decision to terminate the program was unlawful.

In 2012, the Department of Homeland Security established DACA to authorize the temporary deferred removal of “certain young people who were brought to this country as children and know only this country as home.” In doing this, DHS was simply doing what administrations of both major political parties have done for decades — exercising the substantial discretion Congress has conferred on the executive branch to set priorities and make determinations about how best to enforce the nation’s immigration laws. Indeed, the tool DHS used to implement those priorities — deferred action from removal — is one that administrations of both parties have consistently employed, and that Congress has repeatedly endorsed on a bipartisan basis.

Since DACA went into effect, its impact on recipients of deferred action has been “profound,” as one study put it: “Under DACA, beneficiaries saw increased educational attainment, higher social mobility, and better mental health.” According to another study, “DACA recipients continue to make positive and significant contributions to the economy, including earning higher wages, which translates into higher tax revenue and economic growth that benefits all Americans.”

Despite the successes of the program, the Trump administration decided to end it in 2017, citing its supposed “legal and constitutional defects.” But, far from being illegal, DACA is only the latest in a long line of programs in which the executive branch has permissibly exercised its broad discretion to grant undocumented immigrants deferred action on either a case-by-case or class-wide basis. And that means that the Trump administration’s decision to terminate DACA on those grounds is itself unlawful under the Administrative Procedure Act’s provision proscribing agency action that is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.”

Because immigration is a complex and dynamic issue, Congress has long conferred significant discretion on the executive branch to implement the nation’s immigration laws. In particular, Congress has, for more than 60 years, authorized the secretary of DHS (previously the attorney general) to “establish such regulations; … issue such instructions; and perform such other acts as he deems necessary for carrying out his authority” under the Immigration and Nationality Act, which charges the secretary “with the administration and enforcement” of the federal immigration laws. Moreover, in recognizing a growing gap between the size of the unauthorized-immigrant population and the resources reasonably available for enforcement, Congress directed the secretary of DHS in the Homeland Security Act of 2002 to establish “national immigration enforcement policies and priorities.” As law professors Cristina Rodríguez and Adam Cox have explained, these and other provisions in our federal immigration laws “delegat[e] tremendous authority to the President to set immigration screening policy.” Indeed, the Supreme Court itself has repeatedly recognized that Congress has given the executive branch broad discretion in the immigration context, observing that a “principal feature of the removal system is the broad discretion exercised by immigration officials” and that “[f]ederal officials, as an initial matter, must decide whether it makes sense to pursue removal at all.”

And for decades, administrations of both major political parties have exercised that discretion, including by granting undocumented immigrants deferred action on both case-by-case and class-wide bases. In 1987, for instance, after the Immigration Reform and Control Act gave lawful status to some undocumented immigrants, the Reagan administration created the Family Fairness Program, which allowed Immigration and Naturalization Service district directors to choose not to remove some children and spouses of immigrants whose status had recently changed under the act. That program was then expanded in 1990 under President George H.W. Bush to allow more people to qualify for deferral of deportation and also to receive work authorization. And in 2006, during the administration of President George W. Bush, Immigration and Customs Enforcement published a field manual that included, among other things, guidelines for when deferred action could be granted.

The Supreme Court has recognized that such deferred action is “a regular practice” that the executive branch engages in “for humanitarian reasons or simply for its own convenience,” and Congress itself has repeatedly taken affirmative steps that demonstrate its approval of these exercises of executive discretion, including passing legislation that presumes that the executive will continue to grant deferred action or that expressly directs the executive to continue doing so. For example, in passing legislation defining “deportable aliens,” Congress assumed that the executive would sometimes grant deferred action, as the statute provides that the “denial of a request for an administrative stay of removal under this subsection shall not preclude [an] alien from applying for … deferred action.” And when Congress reauthorized the Violence Against Women Act in 2000, it “not only acknowledg[ed] but also expand[ed] the deferred action program … , providing that children who could no longer self-petition under VAWA because they were over the age of 21 would nonetheless be ‘eligible for deferred action and work authorization.’” Thus, DACA was plainly a permissible exercise of the executive branch’s discretion.

It was also a necessary one: Congress has made a substantial number of noncitizens deportable, but it has nowhere mandated that every single undocumented immigrant be removed, nor has it provided sufficient resources to effectuate the removal of more than a small fraction of the nation’s undocumented immigrants. Instead, Congress has reasonably permitted the executive branch to set the nation’s immigration-enforcement priorities, and the executive branch determined in 2011 that “aliens who pose a danger to national security or a risk to public safety” were the highest priority for civil immigration enforcement, while other undocumented immigrants remained a lower priority.

Significantly, by the time DACA was implemented, there was a history of members of Congress asking the executive to exercise its discretion to protect essentially the same group of individuals who were made eligible for deferred action under DACA. In a 1999 letter to the attorney general and the INS commissioner, bipartisan members of Congress noted the “well-grounded” principle that the “INS has prosecutorial discretion in the initiation or termination of removal proceedings” and specifically called on the executive to issue written guidelines and “exercise … such discretion” in “[t]rue hardship cases,” including those involving people “who came to the United States when they were very young.” And shortly after the DHS secretary issued the 2012 memorandum implementing DACA, a group of 104 members of Congress sent a follow-up letter to President Barack Obama praising the use of prosecutorial discretion in DACA, which they acknowledged deferred the removal of certain “outstanding young Americans.”

In sum, DACA did what Congress legally authorized the executive to do: temporarily defer the removal of qualified “young people who were brought to this country as children and know only this country as home,” so that immigration officers could instead focus their enforcement efforts and limited resources on higher-priority cases. DACA is therefore lawful — just like the various deferred-action programs that preceded it. Given that, Trump cannot now claim that he is compelled to end the program on the ground that it suffers from “legal and constitutional defects.” As the U.S. Court of Appeals for the 9th Circuit recognized, “where the Executive did not make a discretionary choice to end DACA — but rather acted based on an erroneous view of what the law required — the rescission was arbitrary and capricious under settled law.”

Trump may be hoping that the Supreme Court will give him the victory on DACA that the lower courts in these cases have denied him, but there’s good reason to think that it won’t. And that would be a good thing not only for DACA recipients, but also for the rule of law and the country as a whole.