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Immigrants who came to the United States illegally as children received a temporary victory from the U.S. Supreme Court Thursday: In a 5-4 decision, the high court ruled the Trump administration cannot shut down the Deferred Action for Childhood Arrivals (DACA) program in the immediate future.
The Obama-era program allows the immigrants to stay in the U.S. and provides other benefits.
The justices did not dispute the Trump administration’s authority to nullify DACA eventually. But Thursday’s opinion says the way the government ended the program violated the Administrative Procedure Act (APA.) The narrow ruling leaves the door open for the administration to take action against DACA in the future, or for Congress to step in. About 650,000 people are currently in the U.S. because of the policy.
“The dispute before the Court is not whether [the Department of Homeland Security] may rescind DACA. All parties agree that it may,” wrote Chief Justice John Roberts in the majority opinion. “The dispute is instead primarily about the procedure the agency followed in doing so.”
In 2012—after Congress failed several times to pass the Development, Relief, and Education for Alien Minors (DREAM) Act—the Obama administration unilaterally created the DACA program. It shielded minors (often referred to as “Dreamers”) whose parents brought them illegally to the United States if they were under 16 years of age and had arrived by 2007. In September 2017, then-Attorney General Jeff Sessions announced his intent to phase out the program. That sparked a series of lawsuits and federal court rulings and led the high court to consider the case last November. Opponents of ending DACA argued Donald Trump’s administration did not adequately consider the ripple effects unilaterally ending the program would have, including the economic repercussions on businesses employing DACA recipients.
Roberts joined justices Ruth Bader Ginsburg, Stephen Breyer, Elena Kagan, and Sonia Sotomayor, as the swing vote. The majority agreed that the Department of Homeland Security (DHS) rescinded DACA in an “arbitrary and capricious” way that violated the APA, which governs federal agencies’ rulemaking procedures.
The justices decided the administration only partially justified ending the program. Then-acting DHS Secretary Elaine Duke explained the agency’s reasons for scrapping DACA benefits for recipients, such as work permits and the ability to receive Social Security and healthcare. But she failed to explain the agency’s reason for ceasing its “non-enforcement” policy of not deporting DACA recipients. Her reasoning did not justify ending the program in full, Thursday’s opinion said.
“The appropriate recourse is therefore to remand to DHS so that it may reconsider the problem anew,” Roberts wrote.
In another component of the case, the justices ruled 8-1 (with Sotomayor dissenting) that the administration’s decision to terminate DACA was not because of discrimination against DACA recipients. Conservative justices Clarence Thomas, Samuel Alito, Neil Gorsuch, and Brett Kavanaugh agreed with the majority that hostility didn’t motivate the Trump administration’s decision, but disagreed with the majority’s conclusion that the government violated APA.
In the dissenting portion of his opinion, Thomas wrote that the court’s ruling ignored the fact that the Obama administration’s creation of DACA overstepped the bounds of executive power in the first place. He said such a move could have far-ranging implications for future administrations.
“Under the auspices of today’s decision, administrations can bind their successors by unlawfully adopting significant legal changes through Executive Branch agency memoranda,” Thomas wrote.
He also said the problem required a legislative solution, not a judicial one: “The Court could have made clear that the solution respondents seek must come from the Legislative Branch. Instead, the majority has decided to prolong DHS’ initial overreach by providing a stopgap measure of its own. In doing so, it has given the green light for future political battles to be fought in this Court rather than where they rightfully belong—the political branches.”
Alito concurred in a short, but fiery opinion: “DACA presents a delicate political issue, but that is not our business.”
Democratic lawmakers and immigration groups hailed the decision with approval, while some conservatives expressed disappointment. But as has long been the case, DACA recipients’ fates still hang in the balance.
“This doesn’t provide any kind of longstanding protection for DACA recipients in the community,” said Hannah Vickner Hough, an immigration attorney and director of national immigration programs at World Relief. She told me Thursday that the administration could move to rescind DACA again or punt to Congress. Another attempt to end DACA will likely result in another protracted legal battle.
Trump signaled that he is likely to try. He tweeted Thursday that he is “asking for a legal solution on DACA, not a political one … the Supreme Court is not willing to give us one, so now we have to start this process all over again.”