Following the DACA Case at SCOTUS

By Dan Cadman on November 15, 2019

This past week, the Supreme Court of the United States (SCOTUS) finally held oral arguments in the consolidated cases involving lawsuits against the government for having attempted to end Deferred Action for Childhood Arrivals (DACA), the Obama-era "Dreamers" administrative amnesty cloaked as an exercise in "prosecutorial discretion". It made a mockery of that term since it stood the premise on its head by making discretion the rule, and prosecution via deportation the exception, for hundreds of thousands of aliens living and working illegally in the United States. And it did so literally by establishing a series of rules and policies binding the hands of all Homeland Security officers, even though it is a basic foundation of law that regulations and policies must fit within the parameters of existing statute, and there was absolutely no statute upon which the program rested.

The many plaintiffs, backed up by the multiple advocacy groups that funded the lawsuits, allege that President Trump's attempt to undo what another president had done without benefit of any law was arbitrary and capricious, and therefore a violation of the Administrative Procedure Act (APA).

But how can one not describe the DACA program itself as "arbitrary and capricious" since it was clearly an end-around to Congress's legislative power, which Congress declined to use repeatedly when it did not pass to the president for signature any bills that would have given these Dreamers legal status? What's more, when the Obama White House first implemented DACA, it did so in violation of the APA because implementation occurred without bothering to announce the policy in the Federal Register with time for public comment before finalizing the rule and moving forward. They backtracked and did so after the fact, but it was clear at that point that going through those motions was pro forma, thus also making clear that any public comment would be given short shrift. If this did not violate both the spirit and substance of the APA, then nothing ever will.

So how is it that, at that juncture, no one sued to stop the Obama administration from moving forward as being in violation of the APA? Because of the slippery and one-sided concept of "standing", which I and others have discussed before. (In this regard, readers should peruse John Miano's recent blog post, "Court Rules that American Worker Plaintiffs Have Standing in H-4 EAD Lawsuit", which discussed the elusive nature of standing.)

Several entities did in fact attempt to sue to shut the program down, including, notably, the Immigration and Customs Enforcement (ICE) agents' union, only to have the judge determine they had no standing since in his view they could establish no concrete harm from the policy. That is the crux of the problem: Any alien who alleges he or she doesn't get what he or she applies for is in a position to claim "harm" and therefore argue the rule of standing applies. But ordinary American citizens — even citizens whose professional job is to enforce the laws of the nation — are found not to have standing to sue. I find this curious. In fact, it is beyond curious and downright appalling.

It is as if the courts think that we have no basis for expressing our concern over the future and direction of our country, despite the very clear adverse impact on our country — and our descendants — that uncontrolled massive illegal immigration causes. If we, as Americans, have no skin in the game where the courts are concerned, then who does? Only aliens? I've spoken before about the cynical saying among many immigration officers: "No case is ever over until the alien wins." Courts and the perverse rule of standing are primary reasons for that cynicism. Too many unelected-but-serving-for-life federal judges believe that their views and policies should supersede those of the legislative and executive branches, despite very clear Supreme Court precedents to the contrary.

Some observers who followed oral arguments believe that the plaintiffs will fail in their suit and that SCOTUS will rule in favor of the administration. Others have drawn at least some hope from questions and comments by Chief Justice Roberts and the newest justice, Kavanaugh, to think that they may be persuadable swing votes.

But even while waiting on a ruling, President Trump, in usual fashion, has launched a Twitter campaign to argue that if SCOTUS rules in the government's favor to end the program, it can be the start of a grand bargain between the chief executive and Congress to finally resolve the status of DACA recipients. It was classic Trump-speak, with something for everyone:

You could focus on the "far from angels ... hardened criminals" portion of the tweet and be offended at the depiction of DACA recipients, if you so chose (and many did); you could focus on the same phrase and be heartened by it if you are suspicious about the bona fides and backgrounds of many DACA recipients (and not without reason); or, like me, you could focus on the "deal will be made" portion.

Some pundits have endorsed the notion, saying that the time would be right. Like my boss, I'm not so sure. Two questions loom large:

  1. Can our legislators resist the urge to tack others onto a proposed DACA amnesty in a widening pool that ends up in the millions?
  2. Can the administration be trusted not to use the opportunity, contrary to its public hype, to push an agenda that involves a virtual free pass for hundreds of thousands of so-called "temporary" foreign workers who displace Americans and depress wages — especially among those in our society who are already on the lower rungs of the economic ladder?

As to the first question, I doubt that legislators on either side of the aisle have either the discipline or the self-restraint to pass a limited amnesty. First will come current DACA recipients. Then will come those, plus DACA recipients who let their permits expire, plus Dreamers who never quite got around to applying for DACA, plus Dreamers who applied and were denied for a variety of reasons, including quite possibly serious criminality. Then we'll see advocates for the temporary protected status (TPS) applicants whose privileges will be terminated if/when that lawsuit reaches SCOTUS and it rules favorably for the administration for reasons much akin to those that may occur if DACA is rescinded. Next undoubtedly will be those who are legislator-lobbyists for Big Agriculture and will want amnesty for farmworkers. And after that? Almost certainly those who will argue that all of the illegal border-crossers who entered prior to "X" date — that X being fluid, you understand, depending on the proclivities of the proposer — just, of course, so that the United States can "push the reset button" to use a notorious phrase, and clean up the absurd backlog in the immigration courts.

And all of this will likely take place before the negotiating even begins on what kind of enforcement measures and tools will be traded for this cornucopia of little amnesties that begin to mount up to a gigantic number. Does Trump get his "big, beautiful" wall? Is sanctuary jurisdictions' access to federal funds shut down fully and completely? Does E-Verify become the law of the land, and does it get adequate funding to ensure that the law doesn't lay dormant like exit controls have for decades? Are asylum and credible fear processes significantly reformed? Are detention beds funded at a level sufficient to take into custody those whose buttons have not been "reset"?

Where the second question is concerned, there are plenty of reasons to mistrust the Trump administration, because this is where Trump the president begins to think and act like Trump the businessman with an insatiable desire for temporary workers of all sorts. We've seen enough proof already that the "Buy American, Hire American" shtick was foisted off on a credulous public by The Man Behind the Screen, because the government continues to be profligate in its giveaway of H visas; has been docile about its rollback of work authorizations for Optional Practical Training; and recently worked with the Department of Labor to eliminate obstacles to the way corporate seekers of H-2B slots have to announce jobs so that Americans and lawful resident workers may be apply, thus making it easier for those companies to get their hands on cheap foreign labor.

Finally, it's worth pondering that it's Jared Kushner, son-in-law-in-chief, who has been charged by the president with putting together the grand immigration bargain despite having shallow roots where the incredibly complex subject is concerned. A curious choice for a man who owes his job to the position that he staked out over immigration, which was one of balance, enforcement, and "Americans First."

When I consider all of these things, it almost makes me wish SCOTUS will decide to leave DACA intact; however wildly misguided such an outcome would be from a constitutional perspective, it could well be the least damaging of all the propositions that lay before us, yet which are out of our reach to influence due to absurdist notions of "standing" — notions that box the American people out of a process that will dictate the future of our nation and society.