During the Supreme Court's oral arguments in the DACA case on November 12, Justice Sonia Sotomayor spoke inaccurately about the program's recipients:
I've always had some difficulty in understanding what's wrong with an agency saying, we're going to prioritize our removals, and for those people, like the DACA people who haven't committed crimes, who are lawfully employed, who are paying taxes, who pose no threat to our security, and there's a whole list of prerequisites, we're not going to exercise our limited resources to try to get rid of those people. [page 29]
There is, indeed, "a whole list of prerequisites" for DACA status. However, most of the prerequisites that Sotomayor mentioned are not on it. For example, DACA recipients are not required to be completely law-abiding. They can have up to two misdemeanor convictions and remain eligible for the program. Furthermore, they need not be "lawfully employed", as DACA has no work requirement — nor, for that matter, does it have a high school diploma requirement or an English proficiency requirement. As for being a taxpayer, there is again no such requirement in the DACA program.
Perhaps Sotomayor should be granted some leeway because she was speaking off the cuff. Nevertheless, similar inaccuracies have already appeared in a federal court's written opinion. In her decision last year, Ninth Circuit Judge Kim McClane Wardlaw falsely claimed that DACA recipients have "clean criminal records". She also wrote that DACA recipients "unwittingly entered the United States". Since recipients could be as old as 15 when they arrived, many were surely aware of their move!
The misleading rhetoric is understandable for an activist, but it is unbecoming of a judge, and it does a disservice to the debate. As I wrote last year:
Supporting DACA is easier when recipients can be described as law-abiding, productive, living here through no fault of their own, and unconnected to their birth countries. But that's not what DACA requires. If the program's architects wanted to describe recipients that way, they should have imposed those requirements in the application process. They did not. Instead, they allowed DACA to cover a much broader group of illegal immigrants.
If the DACA program as written is so desirable, proponents should be willing to defend its application to the whole population of beneficiaries — not just to the cases who are most sympathetic.
There is a small irony here. In the present Supreme Court case, litigants have accused the Trump administration of hiding behind an assessment that DACA is illegal. They say that rather than "owning" its opposition to DACA on policy grounds, the administration cravenly insisted that the law tied its hands. However, the same litigants seem unwilling to own their support for DACA on policy grounds, as they often imply that DACA covers only an idealized subset of the actual recipients.