“Home is here!” chanted about 1,000 people on the steps of the Supreme Court.
They were there, huddled in a chilly November rain, to support the roughly 700,000 "Dreamers"—people brought to the United States as children who are temporarily protected from deportation by the government program known as DACA ( “Deferred Action for Childhood Arrivals”).
Judging from the proceedings inside, however, “here” won’t be home much longer.
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Despite a record full of misrepresentations and obfuscation by the Trump administration, today’s oral argument suggests that the Court will let President Donald Trump end DACA, turning those 700,000 people into pawns in his negotiations with Congress.
DACA began in 2012 under the Obama Administration, after Congress failed to act on immigration. Under the program, the government agrees not to deport Dreamers who were brought to the U.S. before 2007, have no criminal record, pass a variety of other tests, and register with the government.
In September 2017, the Trump administration ended the policy.
Almost everyone agrees that, had the Trump administration simply said at the time, “We don’t like DACA as a matter of policy,” it would probably have passed legal muster.
But Trump didn’t do that. Under pressure from multiple sides—immigration hawks want to deport all the illegals, but public support for Dreamers is high across both parties—the administration fudged. Since they didn’t want to end a popular program, they said that, actually, DACA is illegal and unconstitutional; they had no choice but to end it.
That’s probably false, as several courts have found.
So, as a result of multiple lawsuits, the Trump administration has changed its tune—several times.
First, the administration said this decision isn’t renewable at all, since DACA is just an agency prerogative.
Then the government tried to short-circuit the entire process of judicial review, with Trump complaining on Twitter that the Ninth Circuit Court of Appeals was “broken and unfair.” The Supreme Court rejected that attempt in February 2018.
Then. having no choice but to defend the decision in court, the Trump administration said that, actually, DACA must end for a bunch of policy rationales cooked up during the litigation, including respect for the rule of law, deterring more immigration, and, well, anything else a clever lawyer could think up.
Of course, all of these rationales—illegal, unconstitutional, whatever—are just papering over the real reason for the decision: that cracking down on “illegals” is part of Trump’s populist appeal to his base.
And Tuesday morning, just as the Court was about to hear the case, Trump again took to Twitter to lie about both DACA and the reasons for rescinding it:
In fact, if any DACA participant commits a serious crime, they’re thrown out of the program; President Obama never said any such thing; and, wait a minute, if (some) Dreamers are so terrible, why will they be allowed to stay?
The actual reason is that Trump uses them as a bargaining chip, most recently to try to cut a “deal” to fund his border wall, which is also the subject of ongoing litigation.
Notwithstanding all these machinations, the Court’s conservatives—including Chief Justice John Roberts, the likely swing vote in the case—seem inclined to let Trump deport the Dreamers.
Justice Bret Kavanaugh said he was satisfied by the post-hoc rationalizations. Justice Neil Gorsuch said he thought the decision is unreviewable. Chief Justice Roberts suggested that he thought DACA really was illegal from the start. Justice Clarence Thomas said nothing.
Indeed, the Court’s conservatives focused more on the original Obama-era policy, while liberal justices focused on Trump’s revocation of it. And if Roberts takes a dim view of DACA, that means he would likely agree with the Trump administration’s claim that it’s illegal.
Only Justice Sonia Sotomayor, and, perhaps surprisingly, Justice Gorsuch reminded the lawyers that ending DACA could destroy actual lives. “They speak to all of us,” Gorsuch said of the human stories at stake.
Naturally, on the courthouse steps, most of the attention was focused more on those stories than the technicalities of judicial review. Numerous DACA recipients spoke about their lives and put human faces on the debate inside. (There are estimated to be around 3.6 million Dreamers, but only 700,000 registered with DACA. The vast majority of DACA registrants are employed, or students, or serving in the military.)
“America’s Dreamers have proven they are worthy of this homeland,” said California Attorney General Xavier Becerra, the lead counsel in one of the cases, on the courthouse steps. “Together we have proven that the DACA program is legal and an American success story.”
Yet the DACA cases are also about an even deeper issue: the limits on Trump’s power.
As in the census cases from the Spring, the Muslim/Travel Ban case from 2018, and the border wall cases wending their way through the system now, this case is about the government lying about a policy decision because its actual rationale is about race-baiting demagoguery.
And as in the profound constitutional crisis of White House officials refusing to answer congressional subpoenas, it is about the rule of law and the limits (if any) on executive power.
Perhaps, then, these cases are a microcosm of the Trump administration as a whole: trampling the rule of law in the name of nationalist race-baiting, with 700,000 lives on the line.
