The Supreme Court will review today a controversial policy initiated by President Donald Trump and blocked by lower courts, this time in the midst of an election year and with the fate of nearly 700,000 young migrants brought to the United States as children hanging on the outcome.
The Trump administration for more than two years has attempted to wind down the Deferred Action for Childhood Arrivals program, announced by President Barack Obama in 2012 to protect from deportation qualified young migrants who were brought to the U.S. as children and are now here illegally.
Individual recipients, giant corporations, civil-rights groups and universities have challenged the Trump administration plans, and won. Lower courts have found the administration relied on faulty legal analysis for ending the program, rather than providing lawful reasons that the courts and the public could evaluate.
Nearly 800,000 people over the years have participated in the program, which provides a chance to legally work in the U.S. so long as those enrolled follow the rules and have a clean record. More than 90% of recipients are employed and 45% are in school, according to one government study.
Dozens of briefs have been filed in what will be one of the court's marquee cases of the term, many of them only tangentially addressing the legal issues at play.
Instead, they extol the doctors, lawyers, engineers, students and military officers whose accomplishments were made possible by the program.
Microsoft, which employs more than 60 recipients, is a party to one of the lawsuits, and the tech giant's president, Brad Smith, wrote in a recent blog post that "we represent employers of all sizes in making the case to uphold DACA."
More than 140 companies filed a brief to show what Smith said was the "serious harm that would be inflicted on the economy if we were to lose the contributions of Dreamers."
Trump has said that he finds program recipients hard-working and sympathetic, many of them thriving in the only country they have ever known. He said in a tweet last fall: "Does anybody really want to throw out good, educated and accomplished young people who have jobs, some serving in the military? Really!"
But Congress and the White House have failed for years to come up with a permanent solution. Obama set up the program after negotiations over a comprehensive immigration overhaul plan failed. Democrats passed another plan to protect program recipients, but Trump and Republicans wanted a more extensive deal that would include his plans for building a wall along the southern border.
Most recently he has said that a Supreme Court ruling in favor of his administration is necessary to bring Democrats back to the table.
"Rest assured that if the SC does what all say it must, based on the law, a bipartisan deal will be made to the benefit of all!" he tweeted in September.
Solicitor General Noel Francisco said in a brief to the Supreme Court that the judiciary has no authority to keep the administration from revoking "a discretionary policy of nonenforcement that is sanctioning an ongoing violation of federal immigration law by nearly 700,000 aliens."
He added: "At best, DACA is legally questionable; at worst, it is illegal."
But California Attorney General Xavier Becerra, a Democrat who is leading one of the lawsuits against the program's revocation, said that the administration's argument ignores an important difference.
"President Obama followed the law to put it in place," Becerra said in an interview. "Donald Trump did it the Donald Trump way. You can't change the law by breaking the law."
The Trump administration moved to scuttle the program in 2017 after Texas and other states threatened to sue to force its end. Then-Attorney General Jeff Sessions advised the Department of Homeland Security that the program was probably unlawful and that it could not be defended.
Sessions based that decision on a ruling by the U.S. Court of Appeals for the 5th Circuit, which said that another Obama program protecting migrants was beyond the president's constitutional powers. The Supreme Court deadlocked 4 to 4 in 2016 when considering the issue.
The administration's argument that the program was halted because it was likely unconstitutional has proven unpersuasive to the lower courts, which have said the administration must provide other reasons.
That was at the heart of the ruling from the U.S. Court of Appeals for the 9th Circuit.
"To be clear: we do not hold that DACA could not be rescinded as an exercise of Executive Branch discretion," Judge Kim McLane Wardlaw wrote. "We hold only that here, where the Executive did not make a discretionary choice to end DACA -- but rather acted based on an erroneous view of what the law required -- the rescission was arbitrary and capricious under settled law."
The consolidated cases the court will hear today are Department of Homeland Security v. Regents of the University of California, Trump v. NAACP and McAleenan v. Vidal.
A Section on 11/12/2019