WASHINGTON – The Supreme Court on Tuesday appeared likely to side with the Trump administration in its effort to end aprogram that lets nearly 700,000 young, undocumented immigrants live and work in the United States without fear of deportation.
During an extended, 80-minute oral argument inside a packed courtroom that included dozens of the threatened immigrants, several conservative justices said the Department of Homeland Security laid out sufficient 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."
The court's ruling likely 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 Even if the court allows the program to be rescinded, most DACA recipients will retain the two-year protection until President Donald Trump or his Democratic successor takes the oath of office in January 2021.
Yet 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. Until now, nearly every federal judge to hear the dispute has sided with the so-called DREAMers, leaving the program intact nationwide.
The Supreme Court's decision last June to hear the case signaled a potential win for the White House, but how it wins would be crucial. If the justices say Trump has the same discretion to end the program that former President Barack Obama had in creating it, the next president just as easily could renew it. If they agree with the Justice Department that it's unlawful, Congress would have to step in.
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 reason for doing so – that DACA was illegal from the start – was accurate and sufficient.
Obama created the program in 2012 after negotiations with Congress to create a path to citizenship faltered. He later 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 then threatened to sue over DACA if the Trump administration didn't end it. But 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 continuing 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 ultimately upheld President Donald Trump's travel ban against several majority-Muslim nations last year but blocked his effort this year to put a 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.