Supreme Court leans toward Trump plan to end DACA program for nearly 700K undocumented immigrants

Richard Wolf | USA TODAY

Show Caption Hide Caption DACA recipients anxious over Supreme Court hearing case USA TODAY spoke with four DACA recipients in Austin, Texas about the Supreme Court hearing the case that will decide the fate of the program.

WASHINGTON – The Supreme Court on Tuesday appeared likely to side with the Trump administration in its effort to end a program that lets nearly 700,000 young, undocumented immigrants live and work in the USA without fear of deportation.

During an extended, 80-minute oral argument inside a packed courtroom that included some of the threatened immigrants, several conservative justices noted the Department of Homeland Security laid out several reasons for its decision to rescind the Deferred Action for Childhood Arrivals, or DACA, program.

Associate Justice Neil Gorsuch acknowledged that the case's "sympathetic facts ... speak to all of us," but he said the large number of people affected and the impact ending DACA would have on employers and entire communities was taken into consideration.

The court's four liberal justices argued that the decision to end DACA should rise or fall on the administration's tenuous claim that it was illegal, rather than what Associate Justice Ruth Bader Ginsburg said might be a more legitimate reason: "We don't like DACA, and we're taking responsibility for that, instead of trying to put the blame on the law."

Chief Justice John Roberts looked to be the key vote, as he was in June when he voted with the court's four liberal justices to strike down the Trump administration's effort to add a citizenship question to the 2020 census. This time, he said the attorney general might be justified to say DACA was illegal after a related ruling by the U.S. Court of Appeals for the 5th Circuit that the Supreme Court upheld on a 4-4 vote in 2016.

"You've got a court of appeals decision affirmed by an equally divided Supreme Court," Roberts said. "Can't he just say that's the basis on which I'm making this decision?"

The court's ruling probably won't be handed down until next spring, when the 2020 presidential election campaign is in full swing. Even if the court allows the program to be rescinded, most DACA recipients will retain the two-year protection until President Donald Trump or his Democratic successor takes the oath of office in January 2021.

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The threat of losing their protected status prompted hundreds of DACA recipients to march, ride or fly to Washington for Tuesday's argument and stage demonstrations outside the court.

Inside, the audience included University of California President Janet Napolitano, who authorized DACA as secretary of Homeland Security in 2012 and sued the Trump administration over its elimination; Ken Cuccinelli, Trump's acting director of Citizenship and Immigration Services; and Sen. Dick Durbin of Illinois, the Senate's second-ranking Democrat.

Until now, nearly every federal judge to hear the dispute has sided with the so-called DREAMers, leaving the program intact nationwide. But the Supreme Court's decision in June to hear the case signaled a potential win for the White House.

How it wins would be crucial. If the justices simply refuse to overrule the Department of Homeland Security's discretionary decision, the next president just as easily could renew the program. If they agree with the Justice Department that it's unlawful, Congress would have to step in.

Legal or policy reasons?

The question before the justices Tuesday was not whether the Trump administration can wind down the program, which is undisputed. Rather, they were asked to decide if the administration's initial reason for doing so – that DACA was illegal from the start – was accurate and sufficient.

Some of the conservatives questioned U.S. Solicitor General Noel Francisco on whether the administration adequately considered DACA recipients' reliance on the program, as well as that of employers, universities and others.

Roberts, whose vote is pivotal, said that even if the program is illegal, the administration doesn't have to "go back and untangle all the consequences of that."

The liberal justices seemed inclined to rule against the administration – particularly Associate Justice Sonia Sotomayor, who said the administration had not come clean about its reasons: "This is not about the law. This is about our choice to destroy lives."

Theodore Olson, a former U.S. solicitor general representing DACA recipients, agreed that "the administration did not want to own this decision" by acknowledging its opposition to the program. Later, however, Francisco stated bluntly: "We own this."

Trump v. Obama, again

President Barack Obama created the program in 2012 after negotiations with Congress to create a path to citizenship faltered. He sought to extend similar protections to more than 4 million undocumented parents of citizens or lawful permanent residents, but that was shot down by federal courts.

Texas threatened to sue over DACA if the Trump administration didn't end it. When the Department of Homeland Security did so, lawsuits were filed from California to New York and several places in between, and two federal judges blocked the action nationwide.

The U.S. Court of Appeals for the 9th Circuit, based in California and a thorn in Trump's side, ridiculed the effort to deport "blameless and economically productive young people with clean criminal records."

To qualify every two years for DACA, recipients generally must be students, high school graduates or be enrolled or honorably discharged from the military. They cannot have been convicted of a felony, significant misdemeanor or more than three lesser crimes.

Nearly three dozen legal briefs were submitted on their side by groups representing big business, educators, religious institutions, labor unions, law enforcement and national security groups, along with immigration and civil rights organizations.

Beyond the reprieve the program provides for the DREAMers, the case is important for several legal, policy and political reasons:

• It represents a major separation-of-powers wrestling match between the executive and legislative branches of government.

• It is the third major immigration battle to reach the court in which the Trump administration has used shifting justifications for its actions. The court upheld Trump's travel ban against several majority-Muslim nations last year but blocked his effort this year to put the citizenship question on the 2020 census.

• It advances the Trump administration's effort to dismantle policies put in place by the Obama administration. The president has been unable to do away with the Affordable Care Act's health care protections but was successful in ending the Clean Power Plan, Obama's signature climate change policy.

• A win at the Supreme Court would enable Trump to resume negotiations with Congress by offering to extend DACA in exchange for increased border wall funds. It also would make the program a major issue in the 2020 elections.

Even before the case was heard Tuesday, the president was playing dealmaker on Twitter, suggesting "a deal will be made with Dems" if the Supreme Court sides with his administration on winding down the DACA program.