Kevin Daley on November 12, 2019

A closely-divided Supreme Court seemed inclined to uphold President Donald Trump’s bid to terminate the Deferred Action for Childhood Arrivals (DACA) program during arguments Tuesday morning.

The high court’s conservative majority appeared to think the administration has provided an adequate basis for ending the policy, and in spaces even wondered if the courts had power to review the dispute.

DACA does not confer lawful status on recipients, nor is it a defense against deportation. Instead, if delays removal for a renewable two year period and allows beneficiaries to apply for work permits. Former President Barack Obama established the program in 2012. To qualify, recipients must have entered the country unlawfully before age 16, show five years of continuous residence in the U.S., graduate high school, serve in the Armed Forces, or enroll in school.

The Department of Homeland Security (DHS) oversees the program. There are approximately 700,000 so-called “Dreamers.” California is home to the largest number of DACA beneficiaries according to U.S. Citizen and Immigration Services (USCIS), with approximately 190,000 recipients. Texas follows at about 110,000.

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Acting Homeland Security Secretary Elaine Duke set a timeline for DACA’s termination in Sept. 2017. In a memo explaining her decision, Duke said then-Attorney General Jeff Sessions told DHS that the program is unlawful. She further noted that the 5th U.S. Circuit Court of Appeals blocked a similar amnesty initiative called Deferred Action for Parents of Americans (DAPA), and that a coalition of states was threatening to sue the federal government over DACA in view of the 5th Circuit’s DAPA decision.

Duke’s memo prompted a flurry of litigation. Federal trial judges in California, New York, and Washington, D.C. blocked the order on a nationwide basis. Neither the plaintiffs nor the lower courts believe Trump lacks the power to terminate DACA. Instead, the challengers say Duke’s memo is “arbitrary and capricious” under the Administrative Procedure Act (APA) and must be set aside.

The APA requires that the government provide clear, reasoned explanations for new policy. By contrast, the plaintiffs argue Duke’s memo is a “superficial explanation” that “fails to explain the Acting Secretary’s reasoning.” The challengers say a second memo former Homeland Security Secretary Kirstjen Nielsen issued on DACA’s termination in June 2018 is similarly deficient.

“It is truly remarkable that a Cabinet-level officer would offer such a cursory explanation for a decision that affects hundreds of thousands of lives and reverses a longstanding and carefully-reasoned government position,” the plaintiffs told the justices in court filings. “The APA requires more.”

The Trump administration counters that its decision to cancel DACA is not subject to APA arbitrary and capricious review in court. That’s because the APA doesn’t apply to actions “committed to agency discretion by law.” Rescinding a non-enforcement policy like DACA is a “quintessential” example of agency discretion, the government says, much like a prosecutor’s decision to pursue or decline indictments. The government’s discretion is especially powerful in the immigration area, the administration adds.

“Decisions about how the government will exercise enforcement discretion within the bounds of the law are uniquely entrusted to the Executive Branch,” the administration wrote in court papers. “The APA’s judicial review provision thus does not apply.”

The Mexican government and a coalition of big businesses are urging the justices to maintain DACA. A decision in Tuesday’s dispute, No. 18-587 Department of Homeland Security v. Regents of the University of California and the consolidated cases, is expected by June 2020.

This is breaking news. This post will be updated.

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