Earlier this month, the Supreme Court held oral arguments on the validity of President Trump’s “decision” to terminate the Deferred Action for Childhood Arrivals (DACA) program established under President Obama.  The program — limited to those brought here as children who meet certain criteria — assures participants that they will not be deported and gives them some legal rights.  President Trump — rather due to his opposition to immigrants from Latin America or his hatred for anything that President Obama accomplished — decided to terminate this program, thereby subjecting individuals who were brought here as children without proper documentation to deportation at any time that they are found by Immigration and Customs Enforcement Agency regardless of what they have done while living in the United States (either good or bad).  Various individual and agencies filed suits challenging this decision, and they prevailed in the lower courts.  The Supreme Court decided to hear three of these cases (consolidated into one argument).

Before going into the issues, it is important to note one complicating factor in this case.  Before the end of his administration, President Obama tried to create a companion program (DAPA) that would potentially have covered the parents of the participants in DACA.  That expansion was blocked in the trial court and by the Fifth Circuit (the appellate court that includes Texas).  The Supreme Court took that case, but — after oral argument — Justice Scalia died.  That left a 4-4 split on the DAPA case which means that the Supreme Court affirmed the Fifth Circuit without opinion as an “equally divided court.”  Because there was no opinion, there is no guidance on any of the relevant legal issues.  That absence cuts both ways in the current case.

The Trump Administration has two basic arguments.  First, they argue that DACA falls within the “discretionary enforcement” part of executive branch authority.  Stripped of legal jargon, agencies have limited resources.  As such, they have to make decisions about enforcement priorities and these decisions are generally not reviewable.  For example, a state prosecutor’s office in an urban area may decide that it lacks the resources to vigorously prosecute violent felonies and, therefore, decline to file routine misdemeanors believing that it would be a better use of state resources to let city prosecutors handle those matters in city court.

If the Supreme Court were to include that DACA is more a policy or program than an enforcement decision, then changes to the program are subject to the Administrative Procedure Act.  As we saw several months ago, the Administrative Procedure Act requires that the government engage in a proper process and make decisions for valid reasons.  (Which, of course, requires actually looking at the facts and reading reports; something that President Trump apparently is reluctant to do).  So the second strand of the Trump Administration’s argument is that their actions were valid under the Administrative Procedure Act.  For the purposes of the Administrative Procedure Act, the Trump Administration offers two reasons supporting their decision:  1) questions about the validity of DACA; and 2) opposition to broad categories of non-enforcement of immigration law (preferring to handle enforcement matters on a case-by-case basis).  That first reason creates a side issue about the validity of DACA in the first place.  While technically that question is not before the Supreme Court, it seems likely that at least some of the justices will want to address that question — either to reverse the Administration’s decision or to bolster it.

The issue of the validity of DACA, in part, gets back to the original question of what DACA is.  The Administration attempts to argue that DACA was a decision to not enforce immigration law in relation to a broad class of individuals.  They want to distinguish between case-by-case non-enforcement decisions and the decision to not enforce those laws on a broad basis, claiming that immigration law bars such the establishment of such a broad class.  On the other hand, the supporters of DACA point to provisions in immigration law that do require decisions on deferring prosecution that then trigger benefits under other statutes.  According to the supporters of DACA, past history related to non-enforcement decisions on a group basis reflect that DACA is within the authority granted to the executive branch by the Immigration and Nationalization Act.

There were some questions that create the possibility of something other than the conservatives rubber-stamping the Trump Administration’s decision.  Of course, Justice Thomas never asks a question and Justice Alito’s questions indicate that he is pretty much a lost cause in this case.  And we don’t yet have enough from Justice Kavanaugh to determine if there is much hope of him becoming a swing vote in cases of this type.

Ultimately, while the number of angles to this case gives the Supreme Court some wiggle room, it seems like ultimately the case will come down to two questions:  1) Does the memo from former Secretary Nielsen issued while the case was pending count as the agency “decision” or is the decision the earlier memo; and 2) should the administration be required to firmly make a decision on the merits of DACA without consideration of their “legal” questions about the original enactment of DACA?   It seems like Chief Justice Roberts, Justice Kavanaugh, Justice Gorsuch, and Justice Breyer are dancing around a potential resolution that might validate the original decision to implement DACA and are debating whether to decide that the Administration said enough that it can be fairly stated that they made a merits decision to rescind DACA on policy ground.  In other words, the Supreme Court would state that the Trump Administration decided to legalize deporting Dreamers because it wanted to be able to deport Dreamers and that — unless Congress passes the Dream Act — that is a choice that the Trump Administration can make.  Alternatively, the Supreme Court might punt it back to the Department of Homeland Security to make a final decision on policy grounds holding that the early decision was tainted by misguided doubts about the legality of DACA.

Such an opinion is not what the Trump Administration wants.  They would rather that the opinion leave DACA in an ambiguous state and hold that the Administration had the right to consider that ambiguous status in deciding to not continue DACA as a matter of law rather than a discretionary, but reviewable, policy decision.  Or that the Supreme Court held that DACA was illegal in the first place.

The arguments in this case reflect the reality of the Trump Administration.  President Trump makes big outrageous statements in his rallies which are factually challenged at best and reflect a view of how government should work that is contrary to the law and, in many cases, to the Constitution.  Then, when those promises are put into policies by executive order, the attorneys are forced to spin complicated multi-pronged defenses in an effort to prevent the courts from focusing on the President’s true reasons for his acts which are never based on fact and are often based on outlandish theories which are factually challenged and not legally valid.  Given that the legal structure of review of administrative action presumes a government that actually wants to make rational and legal decision, courts are simply not built to address the current approach of acting on whim and spite.  Courts have two choices and we have seen both over recent years — either force a decision into traditional analysis (i.e. the travel ban cases) or admit that the entire process was a farce (the census question) and tell the administration to start over from scratch.  It normally takes at least four months for the Supreme Court to issue an opinion in a significant case; so we are looking at an opinion in March, April, or May.  And given the contentious nature of the issue, what to do about DACA and the Dreamers will be an issue for November, regardless of the ruling.