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Supreme Court DACA fight could push immigration issue to the forefront of 2020 race

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The Justice Department laid out its argument for the Supreme Court Monday in defense of the Trump administration’s attempt to halt a program protecting young undocumented immigrants from deportation as the government moves forward with a case that could force the issue into the heat of the 2020 presidential race.

In 2017, President Donald Trump sought to end the Deferred Action for Childhood Arrivals program, which was created through executive action by President Barack Obama in 2012 to provide temporary legal protection to hundreds of thousands of immigrants brought to the country illegally as children—often referred to as Dreamers—after Congress failed to pass immigration reform. As a candidate, Trump had argued the program was an illegal abuse of power.

Several state attorneys general and other parties sued to block the rescission of DACA, and the case has been tangled in litigation since then. After two federal appeals courts ruled the Trump administration’s action was unlawful, the Supreme Court agreed to hear arguments this fall with a decision likely in the spring or summer of 2020.

In an 89-page filing Monday, DOJ attorneys maintained the judicial branch has no jurisdiction to review the decision to end DACA at all and disputed lower courts’ findings that the attempt to shut down the program was arbitrary, capricious, and possibly racist.

“Even assuming the rescission were reviewable, DHS provided multiple, independently sufficient grounds for withdrawing DACA,” the brief states. “First, as a practical matter, DHS was reasonably concerned about maintaining a nonenforcement policy that is similar to, if not materially indistinguishable from, two related policies that the Fifth Circuit had held unlawful, in a decision affirmed by an equally divided vote of this Court. Second, as a matter of policy, DHS wanted to terminate a legally questionable nonenforcement policy and leave the creation of policies as significant as DACA to Congress. Third, as a matter of law, DHS correctly, and at a minimum reasonably, concluded that DACA is unlawful.”

Though the DOJ brief largely restated arguments the administration has made in previous litigation, immigration advocates slammed the filing as another unnecessary and unjust attempt to kill a successful program that has benefited more than 700,000 people.

“President Trump made it clear that deporting immigrants is his policy goal as president and his electoral strategy in the run-up to 2020,” said Pili Tobar, deputy director of America’s Voice, in a statement. “Now, in service of these objectives, he’s put the full weight of the Department of Justice behind the drive to put DACA recipients into the Trump deportation pipeline.”

The current case, which consolidates several challenges filed in different jurisdictions, does not directly relate to the legality of DACA, nor does it question the executive branch’s general authority to undo executive actions of previous presidents. It is primarily a procedural dispute over whether the Trump administration offered sufficient justification for doing so in the manner it did.

Despite President Trump’s campaign rhetoric denouncing DACA, his Department of Homeland Security initially opted to preserve it. Months later, several state attorneys general who had successfully challenged Obama’s Deferred Action for Parents of Americans and Lawful Permanent Residents program informed then-Attorney General Jeff Sessions they intended to use the same rationale to take on DACA if the administration did not phase it out.

Reasoning that DACA “has the same legal and constitutional defects” as DAPA, Sessions wrote to then-acting DHS Secretary Elaine Duke in September 2017 to advise her DHS should rescind the program. Based on the presumption that it would likely be found unconstitutional, Duke issued a memorandum formally rescinding DACA and instructing DHS to stop accepting new applications immediately and only accept renewals through March 5, 2018.

“The Secretary therefore faced a choice: expend time and resources defending DACA, with the risk that a court would order it shut down either immediately or pursuant to a court-drafted plan beyond DHS’s control, or rescind DACA in an orderly fashion,” DOJ attorneys argued in their brief Monday. “Regardless of whether one agrees with the policy choice, the Secretary’s decision to opt for the latter was an eminently reasonable one.”

That memo—issued the day after Sessions sent Duke his letter and predicated on his conclusion that DACA was “an unconstitutional exercise of authority” that would “likely” be found unlawful in court—formed the basis for legal challenges to the rescission under the Administrative Procedures Act. The APA empowers the judicial branch to overturn an executive agency’s decision if it is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law,” though the court cannot substitute its judgment for that of the agency.

“I don’t think anybody says they don’t have the ability [to end DACA] in the abstract. They try to argue the administration didn’t explain itself well enough,” said Christopher Hajec, director of litigation for the Immigration Reform Law Institute, which filed an amicus brief in support of the Trump administration’s position in December.

After three federal judges rejected Duke’s explanation for ending DACA as arbitrary and capricious, DHS produced a memo from then-Secretary Kirstjen Nielsen arguing there were several policy-based reasons to abandon the program beyond doubts about its legality. Appellate courts have dismissed that document as a post-hoc rationalization for Duke’s original decision, but the DOJ stands by it.

In that memo, Nielsen wrote she doubted DACA would be upheld in court and law enforcement agencies should avoid legally questionable policies to avoid the risk of undermining public confidence. She also said non-enforcement policies affecting broad classes of immigrants should be enacted legislatively by Congress, and DHS should project a message of clear, consistent enforcement of immigration laws “against all classes and categories of aliens.”

Lower courts ruled Duke failed to take into account the disruption ending DACA would cause for those who rely on it for legal protection. Nielsen insisted the sympathetic circumstances of DACA recipients were considered but did not outweigh the argument for ending the policy, adding that DHS could still exercise deferred action on a case-by-case basis as warranted. In its latest filing, DOJ also stressed President Obama did not intend DACA to be a permanent fix.

“Precisely because the DACA solution was only ‘temporary,’ President Obama agreed that ‘Congress need[ed] to act,’” the brief states. “The Secretary reasonably determined that, in the absence of such congressional action, DHS should not maintain this temporary stopgap measure six years later.”

Some supporters of DACA posited that the Trump administration’s move to rescind it was driven by racial animus, citing the president’s anti-undocumented immigrant rhetoric and the fact that more than 90% of DACA recipients are Latinos. DOJ disputes that, noting that Trump has also spoken approvingly of Dreamers and that no racial animus has been attributed to Duke and Nielsen, who are the relevant decisionmakers in this case.

The Trump administration has faced doubts in court about its stated rationale for policy positions before. Earlier this summer, a Supreme Court majority concluded the reason the Commerce Department provided for adding a citizenship question to the 2020 Census was invalid. Though the argument from opponents regarding the DACA decision is similar, Hajec is skeptical the high court would do the same in this case.

“I think it would be a stunning rebuke of the administration to strike down two administrative decisions in succession, especially when with the second one there was a rationale articulated,” he said.

It is unclear exactly what would happen if the Supreme Court rules in the Trump administration’s favor. If the justices simply find the executive branch acted within its authority to rescind DACA, it could free up DHS to wind down the program in an orderly fashion as originally planned. If it concludes the program was unlawful—which Hajec believes may be necessary to address the other issues in the case—that could trigger an immediate shutdown of the program and loss of legal protection for about 700,000 people.

“I think a looming issue is whether DACA is lawful. I will argue the court has a duty to consider whether DACA is lawful because it has a duty to consider its own jurisdiction...,” Hajec said. “If DACA is unlawful, even if the plaintiffs won, the court can’t reinstate it.”

A high court defeat for the Trump administration would not necessarily lift the shadow of uncertainty hanging over DACA recipients. DHS would have the power to rescind DACA in the future if it does so in a less capricious fashion, and the Republican legal challenges to the program that Sessions was trying to forestall in 2017 are still pending.

A conservative federal judge in Texas indicated in a ruling last year that he believes DACA likely is unconstitutional, but he refused to issue a preliminary injunction against the program at the time. Experts expect he may put that case on hold until after the Supreme Court weighs in, but the lawsuit is not going away.

“A decision that it was unlawful would return it to the political process coming up to an election,” Hajec said.

If President Trump wins in court, his effort to shut down a popular program could cost him at the polls. Several Democratic presidential candidates have already made clear they would revive and defend DACA if elected, and a Supreme Court ruling in 2020 would put the issue squarely on voters’ radar.

“Immediately on January 20th of 2021, I will—first of all, we cannot forget our DACA recipients so I’m going to start there. I will immediately, by executive action, reinstate DACA status and DACA protection to those young people,” Sen. Kamala Harris, D-Calif., said at a Democratic primary debate in June to applause from the audience. “I will further extend protection for deferral of deportation for their parents and for veterans who we have so many who are undocumented and who have served our country and fought for our democracy.”

Polls conducted after President Trump announced his intent to end DACA found public opinion firmly against the move. A September 2017 HuffPost/YouGov survey showed 55% of Americans thought Trump made the wrong decision, including 53% of independents, though 83% of Republicans agreed with him. A CNN/SSRS poll conducted in February 2018 found 83% of Americans supported continuing the program, including 67% of Republicans.

Numbers in key battleground states are similar. A June 2019 poll commissioned by Immigration Hub found 71% of Pennsylvania voters and 78% of Michigan voters support a path to citizenship for Dreamers.

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“Killing DACA would have ripple effects harming millions in their families and communities who have poured their heart and soul into protecting Dreamers over the past decade or more,” said Tobar, of America’s Voice. “Dreamers are building their communities, contributing mightily to the economy, serving as first responders and defending our nation in the military. Instead of threatening them with deportation, we should be formally recognizing them as the Americans they already are.”

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