In an op-ed piece in The Hill, Nolan Rappaport discusses the fact that the Trump administration has begun to take steps to assure an orderly shutdown of DACA, including by reinstituting removal cases that were administratively closed, a status that had put them into indefinite limbo, albeit with a full enjoyment of "legal presence" documents accompanied by a panoply of other benefits such as work authorization. This is happening even as the Supreme Court mulls over its decision on the Obama-era DACA program mandating grants of "prosecutorial discretion" to hundreds of thousands of aliens illegally in the United States, upending the notion that the grant was a matter of discretion at all.
As the very title of the op-ed makes clear ("Removal of DACA recipients has begun: It didn't take a crystal ball to see DACA would not end well"), this was not a program that was ever designed with an intelligible endgame.
Rappaport's article got me thinking about my last post on the matter, and revisiting the transcript of the Supreme Court oral hearing on this case, which was in fact a consolidation of several cases litigating the same controversy within different federal district courts.
I remain troubled by the tenor of the remarks reflected in the transcript — which itself was a studied version of unreality in that the respondents (meaning those who sued the government to halt termination of DACA) did all they could to step around the question of whether what the Obama administration did was lawful in the first place. They most assuredly do not want the Supreme Court to deal with that matter if it can be avoided, for fear that the ruling would be unfavorable, thus hobbling future liberal-progressive presidents (or even open-borders conservative presidents, malapropism as that may be) from replicating such de facto amnesties in the future.
Going down that path is like walking through the main street of a dusty western town in a Hollywood set: great facades of faded lapboards and rustic hitching posts, but nothing behind them. There is no "there" there. Sadly, any number of justices appear satisfied to play that game as well, and rule narrowly on the question of adherence to the APA and the Trump administration's articulated reasons for ending DACA, while leaving unaddressed one of the greatest and most constitutionally troubling encroachments by the executive on the legislative power in the history of our nation.
Yet this lent a surreal quality to the discussions that ensued. For example, at one point U.S. Solicitor General Noel Francisco was obliged to observe:
[N]obody is arguing, nobody on either side, is arguing that the INA somehow restricts our ability to enforce the law. And it would be quite surprising if Congress were to pass a law that says something is illegal and then tries to somehow restrict the government's ability from enforcing the laws that it passes. ... But, here, we're not not enforcing the law. We're enforcing the law. And there is simply nothing in the INA that somehow says to the Department of Homeland Security you are restricted in any way or shape or form — from enforcing the laws we pass.
Many of the questions by the justices focused on the nature of the benefits, including legal presence, granted by DACA, referred generally to as "reliance interests".
JUSTICE GORSUCH: One — one — one argument that the other side makes along those lines is similar to this one we've just been considering, the reliance interests that have grown up around DACA. And what do — what do you say to that and whether they've been adequately considered in this case?
JUSTICE BREYER: If I could continue the same question because, look, the best statement of the law in my mind — this is a very old principle — again, was Justice Scalia's writing for the Court in Fox. He says, when an agency's "prior policy has engendered serious reliance interests, it must be taken into account." All right. That's this case, I think ... All right. So I counted — I had my law clerks count, actually, not just the people who came in, you know, the 700,000 — they've never been anywhere else. They — they never have to. But there are all kinds of reliance interests. I counted briefs in this Court, as I'm sure you have, which state different kinds of reliance interests. There are 66 healthcare organizations. There are three labor unions. There are 210 educational associations. There are six military organizations. There are three home builders, five states plus those involved, 108, I think, municipalities and cities, 129 religious organizations, and 145 businesses. ... And they all list reliance interests, or most of them list interest reliance — interests applicable to them, which are not quite the same, they are not quite the same as those of the 700,000 who have never seen any other country. And so then I did read what you [Francisco] just read to me. ... Now you want to say anything about the statement you just read to me being adequate to take into account that broad range of interests?
Justice Breyer chooses to repeat as fact that DACA recipients "have never been anywhere else", but such a statement is pure myth and misdirection. Many entered the United States in their mid-teens; uncounted numbers have been back and forth to the countries of their birth and citizenship; and it's a certainty that the number who speak a foreign language fluently and perceive of their cultural background as other-than-American is an overwhelming majority. It is disappointing that Justice Breyer chooses to accept such canards without question; it reveals a self-evident bias at the case before the bar.
Justice Sotomayor went so far in discussing these reliance interests as to suggest that President Trump was "destroying lives" by deciding to terminate DACA. No, Madam Justice, if there is blame to be assigned, it must be placed on the shoulders of Barack Obama and his staff. It was that administration that neatly and deliberately tossed those balls into the air for the next president to juggle as he saw fit, knowing but apparently indifferent to the strong possibility that it would result in years of judicial actions and public controversy. What's more, it suggests that bilingual, bicultural individuals somehow lack either the capability or elasticity to reshape their lives in other countries, something that is patently absurd — our nation accepts over a million aliens a year who have done exactly that. Why is this a one-way street?
Taken collectively all of this discussion about "reliance interests" is deeply troubling in that it suggests a horse-blinders approach to the granting of immigration benefits: once given, never retrievable.
If DACA was truly as President Obama himself suggested (after initially acknowledging he had no right to initiate such a program) an act of prosecutorial discretion, and therefore temporary in nature — not a full-fledged amnesty, which might only be granted through congressional action and enactment into law — then how can these interested parties, ranging from DACA recipients to their employers, et al., argue that either DACA or its collateral temporary immigration benefits create a basis on which to litigate against ending the program? One cannot have it both ways.
The way the Supreme Court answers these important questions will have repercussions far beyond the DACA case, because waiting in the wings are similar lawsuits filed by various nationals who were recipients of temporary protected status (TPS) programs that have also been ordered terminated. They too will watch with interest in trying to find out whether "reliance interests" can translate by the alchemy of court decision into a permanent right to remain, despite the very name of the program from which they have benefited.