Supreme Court appears ready to let Trump end ‘Dreamers’ program

The court’s liberal justices probed the administration’s justifications for ending the program, expressing scepticism about its rationales for doing so. But other justices indicated that they would not second-guess the administration’s reasoning and, in any event, considered its explanations sufficient.

Still, there was agreement among the justices that the young people who signed up for Deferred Action for Childhood Arrivals, or DACA, were sympathetic and that they and their families, schools and employers had relied on it in good faith.

The arguments in the case, one of the most important of the term, addressed presidential power over immigration, a signature issue for President Donald Trump and a divisive one, especially as it has played out in the debate over DACA, a program that has broad, bipartisan support.

The program, announced by President Barack Obama in 2012, allows young people brought to the United States as children to apply for a temporary status that shields them from deportation and allows them to work. The status lasts for two years and is renewable, but it does not provide a path to citizenship.

In the past, Trump has praised the program’s goals and suggested he wanted to preserve it. “Does anybody really want to throw out good, educated and accomplished young people who have jobs, some serving in the military?” he asked in a 2017 Twitter post.

But as the court took up its future Tuesday, Trump struck a different tone. “Many of the people in DACA, no longer very young, are far from ‘angels,’” he wrote on Twitter. “Some are very tough, hardened criminals.”

In fact, the program has strict requirements. To be eligible for DACA status, applicants had to show that they had committed no serious crimes, had arrived in the United States before they turned 16 and were no older than 30, had lived in the United States for at least the previous five years, and were a high school graduate or a veteran.

Justice Sonia Sotomayor said the DACA recipients were justified in relying on Trump’s earlier statements, which she paraphrased. “They were safe under him,” she said, “and he would find a way to keep them here.”

The roots of the decision to shut down the program figured in the argument, as the justices parsed two sets of rationales from successive heads of the Department of Homeland Security.

After contentious debates among his aides, Trump announced in September 2017 that he would wind down the program. He gave only a single reason for doing so, saying that creating or maintaining the program was beyond the legal power of any president.

“I do not favor punishing children,” Trump said in his formal announcement of the termination. But, he added, “the program is unlawful and unconstitutional and cannot be successfully defended in court.”

That decision was reflected in bare-bones memo from Elaine C. Duke, then the acting secretary of homeland security. She offered no policy reasons for the move.

Theodore B. Olson, a lawyer for the DACA recipients, said the memo allowed the administration to avoid taking political heat on the issue. “The administration did not want to own the decision,” he said.

Solicitor General Noel J. Francisco, arguing for the administration, disagreed. “We own it,” he said.

Francisco pointed to a second memo, issued last year by Kirstjen Nielsen, the homeland security secretary at the time. It mostly relied on the earlier rationales in Duke’s memo, but added one more, about the importance of projecting a message “that leaves no doubt regarding the clear, consistent and transparent enforcement of the immigration laws against all classes and categories of aliens.”

That policy justification, Francisco said, was sufficient even if the administration was mistaken in its legal rationale.

Olson disagreed. “You have to have a rational explanation,” he said. “It must make sense. It must be contemporaneous.”

Michael J. Mongan, California’s solicitor general, who argued in favor of the program, called Nielsen’s new rationale “boilerplate.”

The Trump administration’s argument that the program was unlawful was based on a 2015 ruling from the 5th US Circuit Court of Appeals, in New Orleans. But that decision concerned a different, much larger program. Lower courts have ruled that the two programs differed in important ways, undermining the administration’s legal analysis.

Justice Ruth Bader Ginsburg said Tuesday that it was impossible to disentangle the administration’s legal rationale from its later policy justification. “We don’t know how she would respond,” Ginsburg said of Nielsen, “if there were a clear recognition that there is nothing illegal about DACA.”

On Tuesday, the justices frequently referred to the DACA recipients themselves. “I hear a lot of facts, sympathetic facts, that you’ve put out there, and they speak to all of us,” Justice Neil Gorsuch told Olson.

But Gorsuch said he had doubts about whether it was the role of the Supreme Court to review the administration’s decision to terminate the program.

© 2019 The New York Times Company

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