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The Conservative majority of the US Supreme Court on Tuesday signaled that it could allow the Trump administration to close the Obama-era program, which provides temporary protection against the deportation of approximately 700,000 young people, commonly known as DREAMers.
Bred in the United States illegally as a child, DREAMers were allowed to work legally and attend school if they met certain requirements and passed a background check. The program, launched in 2012, is known as DACA – Deferred Action for Childhood Arrivals.
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Until Tuesday, the administration maintained that it had no choice but to pull the plug because, as President Trump's attorney general put it in September 2017, the DACA program was "illegal" and "unconstitutional" since it was first introduced in 2012 . Three federal courts of appeals disagreed and ruled that when the administration overturns a policy that so many people, businesses and even the US economy rely on, the administration must provide a fully supported justification that weighs the pros and cons.
program, costs and benefits. Faced with these decisions in lower courts, the Trump administration is appealing to the Supreme Court, which appears to be on the verge of an opposite decision on Tuesday.
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Can the Supreme Court even decide this case? Attorney General Noel Francisco opened the argument by telling the judges that they did not have the authority to review policy changes because DACA is a discretionary program under which the Obama administration uses its prosecutorial discretion to delay the deportation of certain cases.
The liberals of the court pushed back. "There is one strange element in your argument," Justice Ruth Bader Ginsburg told the Advocate General. She stated that he claimed that "this is a discretionary issue" and therefore "not subject to review as it is subject to the agency's discretionary responsibility. But on the other hand, you say that the agency was not entitled to judgment because this program is illegal …. So how can one engage in your discretion when you say "we have no discretion"?
Ginsburg said that even a second memorandum was written after the lawsuit apostate, was "infected" with the idea that DACA was illegal.
Justice Sonia Sotomayor cited Trump's controversial remarks about DACA recipients, noting that the president told DREAMers that they were "safe under him" and after
"We own this"
But when the lawyers representing the DACA claimants stood up to argue, they received a flurry of doubt from the conservative wing of the court.
Chief Justice John Roberts s should reduce the number of immigrants covered by previous DACA-like programs dating back to the 1950s. Other members of the Conservative majority fired rounds.
Justice Samuel Alito stated this hypothetically: Say that the administration decided not to prosecute drug cases involving less than 5 kilograms of cocaine, and the next administration decided to change the amount to 3 kilograms. Will this be considered by the courts?
Attorney Theodore Olson, representing the claimants, replied that DACA was different because of the huge number of people and industries and businesses that relied on assurances of the existing program. If the government wants to change such a program, he said, it must state its political reasons, not just by saying that DACA's policies are illegal from the beginning.
"What more would the government have to say?" Justice Neal Gorshush intervened. "What benefit would another five years of litigation on the adequacy of the explanation serve?"
replied Olson: "We do not know what the administration would do." The Trump administration "does not want to own that decision." It's not an independent decision made by the acting Homeland Security Secretary, because DHS is bound by a one-sentence decision by the Attorney General that DACA is illegal, Olson said.
In rebuttal, Francisco, the Trump administration's lawyer, belittled, saying that the administration decided that even if DACA was and is legal, Trump decided to shut him down.
"We own this," he said.