DACA and the Supreme Court: An Upcoming Decision

Looming Decision

Expected any day between now to June of this year for the Supreme Court to return their decision on DACA. Many of my friends are uncertain and are worried. I am worried too. For the next two weeks of May, composing the 6 argument days, the Supreme Court will be hearing 10 cases.  Historically, the first time in the court's history, the oral arguments are being conducted over telephone conferences and open for the public to listen too in real-time. Opinion issuance day is coming up today on Thursday, May 7th. There is nothing but uncertainty if the long-waited decision will be issued today. With legitimate concern, Dreamers and advocates worry if the Supreme Court will not consider the "human stakes" converging in the DACA decision. 

DACA-recipient Andrea, featured in a SCOTUS blog post, expressed worry after hearing inside the Supreme Court the oral arguments on November 12th, 2019. She was concerned:

"'It was frustrating because they were talking about us as if we were a theory, when in reality we were there looking at everything and obviously we couldn’t say anything,' Andrea said. 'I’m college-educated and everything, but there were a lot of terms I didn’t understand and I felt like I wasn’t prepared.'"

In Tennessee (my home state) anxiety is heavily sensed and felt. Latinx Organizer Jasmin Ramirez with Tennessee Immigration Rights and Refugee Coalition (TIRRC), quoted in an article, stated the wait has been troubling for DACA recipients. "Every time that DACA gets mentioned, as like ‘When is the DACA decision?’, our heart drops." Uncertainty mounts. Thursday today is a potential date for the decision on DACA to be issued. In a reply responding to my Facebook post on May 5th, Jazmin said on the likelihood of May 7th being issuance day for DACA decision is unknowing, "It's a potential decision date but there is no way of knowing whether the DACA case will be decided on that day. We will have to wait and see when they release decisions on thrusday." Grassroots organizations and non-profits have partnered and resourced response networks in the event of decision being issued. The consequences surrounding the decision are a lot. TIRRC created a statewide rapid response network to relay details and updates on DACA decision and the contingent response effort in the aftermath of the decision. Please text DACA DECISION to 615-212-9850 or signup online. 

The Highest Court's Theory?

The Supreme Court's "theory" surrounding DACA seems apparently in favor for Trump if the question of "the human stakes" is not emphasized. The Supreme Court is controlled by a conservative majority which has been a mainstay for the Trump administration's appeals and policy disputes. Notoriously was the Supreme Court's 5-4 majority decision Trump v. Hawaii (2018) affirming "a sufficient national security justification" (p. 38) for the implementation of, as Trump unabashedly said, "a total and complete shutdown of Muslims entering the country." The ruling sounded condemnation from many activists, religious leaders, and political leaders as clear animus towards Muslims was the rational basis for the ban's implementation. The dissenting opinion sharply criticized the majority. Justice Sotomayor did not even hesitate to express full dissension of the "the dangerous logic" of the majority's decision. She voiced dissension (p. 1-28) because the majority's ominous "parallelism" between the majority's deemed "national security basis" for the Muslim ban with the Japanese-American internment camps during WWII. That parallel is the "sordid legacy" of Komeratsu v. United States (1944). The affirmation of the Muslim Ban was a horrible Supreme Court ruling. It is a recent reminder of how the conservative majority can and will disregard any number of human stakes in their legal precedents. 

The legal battle over Trump's executive order (EO) rescinding Deferred Action for Childhood Arrivals (DACA) has been exhaustively complex. Legal opponents of DACA such as then Attorney General Jeff Sessions and Solicitor General Noel Francisco adamantly stated DACA was unlawful (questioning its legality) from the get-go. The basis for terminating the program in the initial AG memo disregards the fact Congress, for many years, has delegated broad discretionary authority to the Executive Branch in enforcing the nation's immigration laws and prosecutorial discretion in deportations for that matter. Sessions's memo expressed the initial basis that DACA was unlawful. This contradicted lower courts' conclusions that DACA is actually legal. Confusingly, DHS then added in their subsequent memo another unspecified basis that DACA was constitutionally defective citing the 5th Circuit Appeals 2015 decision Texas v. United States against the Deferred Action for Parents of Americans and Lawful Permanent Residents program (DAPA). Trump moronically parroted the same reason in an announcement too. Texas and other states did pressure suing the government over DACA too which prompted Trump administration to proceed with the EO winding down DAPA and attacking DACA along with it. The Justice Department's support of the EO and administrative action following DACA's recission went farther arguing against the court's review of DACA's termination. This fundamentally infringed judicial review. Due to the legal and constitutional kerfuffle, courts immediately around the country, such as the 9th circuit, stated the Trump administration held an erroneous view and ill-interpretation of what the law prescribed; ridiculing the initial basis of DACA's recission. The 9th Circuit Court Appeals Panel's unanimous decision in Regents of the University of California v. Department of Homeland Security (2018) ruled the Trump administration's rescission was not a prudent decision per administrative law but simply "arbitrary and capricious under settled law" to a classed category of immigrants- the Dreamers. In short conclusion, the Appeals Panel ruled the Trump administration's rescission of DACA violated the Administrative Procedure Act. The appellate court panel's decision destined a legal battle to ensue in the Supreme Court. 

The Supreme Court has many questions facing the fate of DACA. The National Constitutional Center's We the People Podcast has an enlightening and nonpartisan breakdown of the oral arguments from November 12th, 2019. Legal scholars' commentary notes the Trump administration has made "weird" arguments opposing DACA. Reportedly, liberal Justices were frustrated at the arguments presented by the Trump administration. Solicitor General Noel Francisco's heavy insistence of ignoring the initial AG memo and only consider the subsequent DHS memo dated June 2018 when this exactly infringes administrative law fundamentals. The supposed constitutional defects in DACA argued by Francisco could not be specifically pointed out by himself after further prompt questioning and this was bothersome for the Justices even more. However, the conservative Justices Gorsuch, Kavanaugh, and swing-voter Chief Justice Roberts were receptive to lean in favor of the Trump administration after the oral arguments on November 12th (not surprisingly). 

In a New York Times article dated the same day, it was reported Kavanaugh and Gorsuch had good faith and oddly high-esteem in the administration's decision terminating DACA. Both seemingly complacent Judges said: 

"'I assume that was a very considered decision,' Justice Brett M. Kavanaugh said of a second set of justifications offered by the administration in a memorandum last year after its decision to end the program was challenged in court."

"Justice Neil M. Gorsuch said he saw little point in requiring the administration to come forward with better or more elaborate reasons. 'What good would another five years of litigation over the adequacy of that explanation serve?' he asked."

Chief Justice Roberts went on to agree the adequacy of the administration's "legal footing." What that is is uncertain at this point. Robert implied the winding down of DACA would be minimized to have any negative consequences for Dreamers:

"'It’s not always the case when the government acts illegally in a way that affects other people,' he said, 'that we go back and untangle all of the consequences of that.' The program, he suggested, could be wound down in measured steps."

The conservatives justices did say they express sympathy but if this is actually felt and not merely feigned is not clear. Wounding DACA to revoke work authorization and driver's license is still cruel as this would threaten financial stability of Dreamers. It would still debase DACA recipients.

A silver lining in all of this? Well, recently in late April, the National Immigration Law Center's request (a legal services organization at Yale Law School) to submit an amicus curiae brief to the Supreme Court was approved. The legal brief stressed the sacrifice and incredible help DACA recipients have done as healthcare heroes on the front-lines against the COVID19 pandemic. This brief is on record in the court. It prefaced how the decision to end DACA during the pandemic would be disastrous and an utter disservice to the healthcare workers that are DACA-recipients who have been fighting against the infectious virus. A statistic that might surprise many is, "About 27,000 DACA recipients work in the health care field, out of nearly 700,000 brought to the USA without legal papers as children." The positive of this is the heroism of DACA recipients on the front-lines entered into the court record and the postponement or cancellation of the ruling, as argued in the brief, is a slight possibility. 

So what is the "theory" how the Supreme Court will decide on DACA? Cynics point to how the Supreme Court has in several decisions including the Muslim ban been amplifying the Trump administration's goals and policy issues. I too express this cynical view as the conservative majority is insufferable and obviously a political pawn at the advantage of a Republican administration. Gorsuch and Kavanaugh are Trump-appointees and they both have been viewed to just do the political bidding of Trump. I do not have much faith in Roberts as he is not a moderate; he has caused headache and ridicule from liberals for his rather contemptible conservatism. I have confidence in the liberal Justices for sympathizing and dissenting due to inadequate (more like moronic) arguments of the administration and the human collateral and stakes in the DACA decision. Maybe Gorsuch or Kavanaugh will have a come to Jesus moment and disregard any deference to Trump. Gorsuch in Sessions v. Dimaya (2018) did strike down a vague deportation law weaving in visualization of what the founding fathers treasured and liberty. But I doubt we will see that Gorsuch come in favor of DACA.

Un Corazón Humano

I am frustrated enough that the human stakes are not good enough or are not worthy in the eyes of the court. Theory is there must be legal substance whether for good or bad outcomes and precedents. But what good is the law from the nation's Highest Court when deep down in my human heart - regardless what legal precedent may be laid down - I have a burning moral and sentimental empathy that is way more convincing. My human heart arches and explains clearly that ending DACA is absolutely cruel and inhumane. And if you listen to the human heart, you will understand that yes the Trump administration's reasoning to attack DACA was capricious and abitrary. The living moral and sentimental reason to know that ending DACA is wrong is I think the human heart. I hope more people find that their human heart for all things justice and good in this world is simply enough to realize ending DACA is just so wrong on so many levels.

Notes

I want to sincerely thank and acknowledge Jazmin Ramirez of TIRRC for her insight and knowledge. 

For afterword and latest piece on the DACA decision click on this blog post