Published November 14, 2019

In 2012, President Obama issued an executive order allowing undocumented foreign nationals who arrived in the U.S. under the age of 16 to be shielded from deportation and issued an employment authorization document.  Eligibility for coverage under the Executive Order – Deferred Action for Childhood Arrivals (DACA) depended on a number of factors, including whether the applicant had a serious criminal background and was physically present in the U.S. for the requisite period. DACA has been a huge success, allowing some 700,000 undocumented young immigrants to come out of the shadows, attend universities, assume jobs and otherwise start their lives as tax paying adults.  With the arrival of a new President and agenda in the White House in 2016, the reversal of Obama’s DACA program became a clear goal of the new administration. Dozens of lawsuits and lower federal court decisions later, the legality of President Trump’s decision to end DACA took center stage before the U.S. Supreme Court yesterday and for an unusually long, 80 minute oral argument.  Given the extraordinarily significant, far reaching legal and social issues at play, yesterday’s oral arguments are among the most closely watched in recent history, with the Supreme Court expected to rule on the case by June, 2020.

At stake are the lives of approximately 700,000 approved DACA applicants – individuals who stand to lose not just their employment authorization documents and but possibly an entire future in the U.S.  As stated, there are a myriad of issues at play when it comes to a discussion about the continuation of DACA, including social, political, moral and legal angles.  Each involve a separate discussion, but the only one before the U.S. Supreme Court is with regard to the legality of President Trump’s decision to end DACA.

On the political side, just as oral arguments were set to kick off, President Trump tweeted out an inflammatory statement explaining his decision to end DACA, which featured the blatantly false assertion that the population of approved DACA applicants includes some “very tough, hardened criminals”.  Such a statement is a severe departure from reality, since any kind of “felony conviction, significant misdemeanor offense, or multiple misdemeanors” automatically render a DACA applicant ineligible.  It seems though, that what mattered most to the President, in sending this Tweet, was whether his constituents appreciate and believe his message, and not the veracity of the message.

Then there is the separate question of equity and what is good for society.  For a significant majority of Americans, DACA and even a path to legalization for our nation’s otherwise law abiding undocumented population makes the most sense, at least compared to the alternative of implementing a mass deportation initiative.  For most Americans the idea of sending productive, young adults back to a homeland they really never knew makes little sense, either on a practical level or as a matter of fairness and human rights.  But neither the politics nor the social justice issues are at play before the Supreme Court.  Instead it comes down to what the U.S. constitution has to say about the discretionary powers of the Executive branch and what steps federal law requires an administration to take when it comes to instituting a major policy change, such as the termination of DACA.

Most commentators believe the questions and discussions during oral arguments reflect that a ruling could go either way, and that it would be Chief Justice Roberts that would cast the swing, deciding vote.  Time will tell of course.

PUBLISHED November 14, 2019– “IMMIGRATION LAW FORUM” Copyright © 2019, By Law Offices of Richard Hanus, Chicago, Illinois