DACA Case Reaches Supreme Court for Oral Argument

November 21, 2019

Last week, the U.S. Supreme Court heard oral arguments regarding the Department of Homeland Security's (DHS) ability to lawfully terminate the Deferred Action for Childhood Arrivals policy (DACA).

Since 2012, as a result of President Obama's Presidential Order, DACA benefits have been awarded to more than 700,000 individuals who came to the United States as undocumented children. These individuals have been protected from deportation and they have been granted employment authorization documents, the ability to secure driver's licenses and health insurance. Generally, this population is college-educated, highly skilled and includes members of the U.S. military. Given the age of the DACA children, many have their own families, which include children who are U.S. citizens. In 2017, Congress proposed The DREAM Act, which intended to legalize this specific group of "Dreamers." The Act was never implemented.

The Supreme Court must decide whether DHS's decision to terminate the current DACA policy is judicially reviewable and, if reviewable, whether it is lawful.

DHS argued that DACA was lawfully terminated relying on U.S. v. Texas, 136 S. Ct. 2271 (2016), where the Court affirmed that the Deferred Action for Parents of Americans and Lawful Permanent Residents Act (DAPA) was lawfully terminated. DAPA, an executive order also issued by President Obama, would have permitted the undocumented parents of U.S. citizens and lawful permanent residents to also apply for deferred deportation and employment authorization benefits.

DHS, recognizing that an affirmation as the result of a split court does not necessarily establish a precedent, further argued that even if its action was reviewable under the Administrative Procedure Act, its actions were not "arbitrary or capricious" because DHS presented multiple, independent and sufficient grounds to end DACA.

The additional reasons furnished by DHS included: policy mandates that a comprehensive law like DACA should only be implemented with Congressional approval; states were threatening litigation to stop DACA; DACA was meant to be a temporary and not a permanent measure; and that maintaining a possible illegal policy would likely undermine public confidence in the rule of law and encourage more illegal immigration.

Approximately 1,400 organizations, including universities, civil rights groups, labor unions and national security and religious organizations, have filed "friend of the court" briefs in support of the Dreamers.

The Court's decision is not expected until June 2020. In the interim, trial court injunctions continue to permit DACA beneficiaries to remain in the United States. Should the Court hold that the lower court decision to terminate DACA is lawful, absent new legislation, Dreamers without other lawful status would have to leave the United States.

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