WASHINGTON — The Supreme Court said Friday it will review next term President Donald Trump’s decision to terminate an Obama-era program that protects hundreds of thousands of undocumented immigrants who came to the US as children, setting up a potential decision in the heart of the 2020 presidential election.
A decision siding with the administration could strip protections for nearly 700,000 so-called Dreamers.
Immigration was a signature issue during Trump’s first presidential campaign and will be again in the upcoming election. Democratic presidential hopefuls showed this week that they also intend on seizing on the issue, as they pledged to extend protections in two days of debates — some the top candidates even said they would do so on their first day in office.
The justices have been considering whether to take up the case for months, while allowing renewals for the Deferred Action for Childhood Arrivals program to continue.
The program, which protects participants from deportation and allows them to work in the US, has become a focal point in the debate over Trump’s proposed US-Mexico border wall and efforts to crack down on immigration.
Trump has repeatedly cited the fact that lower courts blocked his effort to phase out DACA and the potential for a Supreme Court review as a reason not to make a deal with Democrats to extend the program on a comprehensive immigration bill. The President has felt all along that although lower courts ruled against him, he would ultimately prevail in the Supreme Court, much as the administration did in the final version of the travel ban.
Last year, for instance, Trump tweeted: “It just shows everyone how broken and unfair our Court System is when the opposing side in a case (such as DACA) always runs to the 9th Circuit and almost always wins before being reversed by higher courts.”
Many DACA recipients are unable to obtain legal status on their own because they were either brought into the country illegally or they overstayed their visas. That often precludes them from becoming a lawful permanent resident because one of the requirements is having entered — and resided in — the country legally.
Friday’s announcement was made without comment or any noted dissent.
Congressional action unlikely
The program was implemented by President Barack Obama after comprehensive immigration reform failed in Congress.
While legislation has been introduced to enshrine the protections into law, it faces an uphill battle, giving additional weight to the Supreme Court’s impending decision.
The Democratic-controlled House of Representatives passed a bill earlier this year that would provide a pathway to citizenship for more than 1 million undocumented immigrants, including DACA recipients, but it is highly unlikely to become law anytime soon, particularly ahead of a presidential election. Even if it were to pass the Republican-controlled Senate, it faces a certain veto from Trump.
The move shows the justices are willing to jump into the political fray, even as Chief Justice John Roberts this term has tried to keep the court out of partisan politics, said Steve Vladeck, CNN Supreme Court analyst and professor at the University of Texas School of Law.
“The court may be hoping that the political branches reach some kind of compromise solution in the interim, but today’s action suggests that they’re unwilling to defer to the political branches indefinitely.”
The issue facing the Supreme Court is not the legality of the program, but the way the Trump administration wanted to terminate it.
In September 2017, then-Attorney General Jeff Sessions announced the phase-out of DACA, arguing that it was created “without proper statutory authority.” Acting Homeland Security Secretary Elaine Duke then formally rescinded the program. Under the administration’s original plan, protections would have begun to expire in March 2018. But a slew of legal challenges and subsequent court rulings kept the program alive.
Plaintiffs, including the University of California, a handful of states and DACA recipients, argued that the phase-out violated the Administrative Procedure Act, a federal law that governs how agencies can establish regulations.
“DACA reflects our nation’s commitment to helping hardworking people and creates hope and opportunity for a new generation — many of whom were brought to our country as toddlers, California Attorney General Xavier Becerra said in a statement Friday. “We look forward to making our case before the Supreme Court.”
Three federal judges have ruled that the justification and the manner by which the administration terminated DACA was flawed. The administration had tried to circumvent the appeals courts and involve the Supreme Court early on to no avail. But late last year, the 9th US Circuit Court of Appeals eventually upheld a ruling blocking the phase out, allowing the Supreme Court appeal.
“To be clear: we do not hold that DACA could not be rescinded as an exercise of Executive Branch discretion,” wrote Appeals Court Judge Kim McLane Wardlaw. “We hold only that here, where the Executive did not make a discretionary choice to end DACA — but rather acted based on an erroneous view of what the law required — the rescission was arbitrary and capricious under settled law.”