President Donald Trump stated the obvious yesterday: If the Supreme Court rules in favor of the government and allows for the rescission of DACA (in a case that is scheduled to be heard on November 12, 2019), Congress will pass a deal to allow the affected individuals to remain in the United States. What that deal looks like is the real question.
That case, which is officially captioned Department of Homeland Security v. Regents of the University of California, involves two issues: Whether the decision of DHS to wind down the Deferred Action for Childhood Arrivals (DACA) program is judicially reviewable, and whether that wind-down was lawful.
To recap: On June 15, 2012, then-Secretary of Homeland Security Janet Napolitano announced that certain aliens who came to the United States under the age of 16 and who met specific guidelines could request consideration of DACA for a period of two years, subject to renewal. The press release accompanying that announcement set forth the parameters of that relief:
Under this directive, individuals who demonstrate that they meet the following criteria will be eligible for an exercise of discretion, specifically deferred action, on a case by case basis:
Came to the United States under the age of sixteen;
Have continuously resided in the United States for a least five years preceding the date of this memorandum and are present in the United States on the date of this memorandum;
Are currently in school, have graduated from high school, have obtained a general education development certificate, or are honorably discharged veterans of the Coast Guard or Armed Forces of the United States;
Have not been convicted of a felony offense, a significant misdemeanor offense, multiple misdemeanor offenses, or otherwise pose a threat to national security or public safety;
Are not above the age of thirty.
As of April 30, 2019, there were approximately 669,080 aliens present in the United States who were DACA beneficiaries, according to USCIS.
On September 5, 2017, Acting Secretary of Homeland Security Elaine Duke rescinded DACA, effective March 5, 2018. DACA recipients whose benefits would have expired before that date could have applied for renewal up until October 5, 2017. As I explained in May 2018, however: "Due to federal District Court injunctions ... that program remains in effect, and U.S. Citizenship and Immigration Services (USCIS) has resumed accepting requests to renew DACA grants."
This should not even be a close case. No matter how you cut it, "deferred action" is a form of a "prosecutorial discretion", which means exactly what it says: a determination by a prosecutor not to bring a case against an otherwise-affected individual, in this case an alien subject to removal. The idea that any court could step in and exercise the discretion of the prosecutor blurs the logical and necessary lines between the prosecutor and the purportedly neutral arbiter of that case, a cornerstone of our system of justice.
While the actual case involves DHS's compliance with the Administrative Procedures Act (APA), and arguments that the decision to rescind DACA either was or is likely to be arbitrary and capricious, section 701(a)(2) of the APA excludes consideration of agency action "committed to agency discretion by law". I can think of nothing more committed to agency discretion by law than whether to file a notice to appear against a removable alien.
It should also be noted that the decision to rescind DACA was spurred by a threat by Texas and other states to seek to amend a prior (successful) lawsuit challenging the Obama administration's proposed Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) to challenge DACA. Then-Attorney General (AG) Jeff Sessions sent a letter to DHS on September 4, 2017, in which he referenced this decision, and stated:
DACA was effectuated by the previous administration through executive action, without proper statutory authority and with no established end-date, after Congress' repeated rejection of proposed legislation that would have accomplished a similar result. Such an open-ended circumvention of immigration laws was an unconstitutional exercise of authority by the Executive Branch. The related [DAPA] policy was enjoined on a nationwide basis in a decision affirmed by the Fifth Circuit on the basis of multiple legal grounds and then by the Supreme Court by an equally divided vote. ... Then Secretary of Homeland Security John Kelly rescinded the DAPA policy in June. Because the DACA policy has the same legal and constitutional defects that the courts recognized as to DAPA, it is likely that potentially imminent litigation would yield similar results with respect to DACA.
The idea that any court could force the Department of Justice (DOJ) to argue what it concludes is a legally indefensible position, again, turns our system of justice on its head. It is like the court telling DOJ: "Make this argument in defense of this proposed litigation, and you will win." As a lawyer, I would have loved having such advice, but that is not how the American system of justice works.
In blocking rescission of DACA, courts have interfered with Congress's exercise of its constitutional power to make decisions about whether or not to deport removable aliens from the United States. The current law is clear that aliens who are removable should be removed.
Worse, those judges' actions have almost definitely hampered our elected representatives from reaching an agreement about what to do about DACA beneficiaries, as Attorney General William Barr recently asserted in arguing against such nationwide injunctions:
The best example of the harm done by these nationwide injunctions is the current litigation over the Deferred Action for Childhood Arrivals program. In 2012, after Congress repeatedly failed to grant legal status to so-called Dreamers, the Obama administration declined to enforce the immigration laws against them. Five years later, the Trump administration announced it would restore enforcement of federal law, prompting Democrats to negotiate in search of a broad solution. Just as a compromise appeared near, a district court judge in San Francisco entered a nationwide injunction prohibiting the Trump administration from ending DACA, thus awarding the Democrats by judicial fiat what they had been seeking through a political compromise.
Far from solving the problem, the DACA injunction proved catastrophic. The program's recipients remain in legal limbo after nearly two years of bitter political division over immigration, including a government shutdown. A humanitarian crisis — including a surge of unaccompanied children — swells at the southern border, while legislative efforts remain frozen pending Supreme Court resolution of the DACA case.
If the Supreme Court determines that the rescission of DACA by DHS was lawful (as it should), there will be pressure on both parties to reach an agreement on whether to grant DACA recipients status and, if so, under what terms. This will provide the administration with the opportunity to negotiate for legislative fixes that the president proposed in January 2018.
Specifically, under that framework, the White House offered legalization for 1.8 million "DACA recipients and other DACA-eligible illegal immigrants" (with a "10- to 12-year path to citizenship") in exchange for improvements to border security (including an end to "dangerous statutorily ... imposed catch-and-release" and the closure of "legal loopholes that have eroded our ability to secure the immigration system and protect public safety"), limitations on chain migration, and elimination of the diversity visa lottery.
The Court's path is, or should be, clear. Then it will be up to the administration and Congress (and in particular, Democrats in Congress) to bargain in good faith on a compromise to address not only what to do about not only almost 700,000 DACA recipients, but also the factors that have encouraged more than 977,000 migrants, the majority of whom are adults with children and unaccompanied alien minors, to enter the United States illegally in FY 2019.
Given the fact that any such legislation will move through the House Judiciary Committee, which also has jurisdiction over impeachment, such good faith may not be a given. To paraphrase Ferris Bueller and Trinculo (serially) though, the news cycle moves pretty fast, and politics acquaints a man with strange bedfellows.