On June 18, 2020, the United States Supreme Court handed down a decision in the case of Department of Homeland Security vs. Regents of the University of California. This long-awaited decision addressed the question of whether the Trump administration could carry out its plan to immediately end the Deferred Action for Childhood Arrivals program (DACA).
DACA has allowed over 700,000 children and young adults to avoid being deported and remain in the United States after being brought here as children by their parents. In addition, DACA recipients are eligible to seek work authorization and to receive Social Security benefits and Medicare. Young people may be eligible for DACA if their parents brought them into the United States before their 16th birthday, and if they arrived before June 15, 2007 and have been physically present in the U.S. since that time.
To be eligible for DACA, recipients must also be currently enrolled in school or be high school graduates or have a certificate of completion or their GED, or be an honorably discharged U.S. veteran. In addition, they must not have been convicted of a felony or significant misdemeanor, or three or more misdemeanors, and they must not pose a threat to national security or public safety.
The Supreme Court ruled 5-4 in an opinion written by Chief Justice John Roberts that the Trump administration’s decision to end DACA was “arbitrary and capricious,” and that the Department of Homeland Security had not provided an adequate justification for terminating the program when it attempted to do so in 2017. Since that time, legal challenges to the attempted termination have allowed beneficiaries of the program, known as “Dreamers,” to continue receiving its protection.
While the Supreme Court decision is a significant victory for Dreamers and a major blow to the Trump administration, it is important to realize that this decision does not permanently protect DACA and Dreamers. The Supreme Court did not state that the Department of Homeland Security did not have the authority to end DACA, only that the reasons it provided for doing so in this case were not sufficient. The reason given for terminating the program was that creating DACA and maintaining it was beyond the president’s power.
The Administrative Procedures Act (APA) “sets forth the procedures by which federal agencies are accountable to the public and their actions subject to review by the courts.” Agency actions can be set aside if they were “arbitrary” or “capricious.” The Court cannot review a federal agency’s decision not to institute enforcement proceedings. However, in this case, the Supreme Court decided that DACA (which provides benefits, as described above) is not simply a decision not to enforce a rule or law. Therefore, the decision to end the program was reviewable.
The Court also pointed out that judicial review of an agency action is limited to the justification the agency provided when it took the action. Therefore, the court properly declined to consider additional reasons for ending DACA that then-Secretary of Homeland Security Kierstjen Nielsen put forth months after the agency moved to terminate the program.
Justice Roberts stated in his decision that while the government failed to adequately justify terminating DACA, the decision in this case does “not decide whether DACA or its rescission are sound policies.” The court’s decision was based strictly on “whether the agency complied with the procedural requirement that it provide a reasoned explanation for its action.” The decision made clear that the administration would be able to try in the future to shut the DACA program down. To do so, however, it would need to offer a more detailed justification than it did originally.
It is worth noting that the Trump administration could turn around and immediately try again to terminate DACA, this time providing an explanation that courts might find more acceptable. However, DACA has been very popular, and it seems unlikely that the government will try to shut it with the presidential election just months away. Therefore, the long-term future of the DACA program hinges very much on the outcome of the U.S. presidential election in November. Since a central part of Trump’s 2016 presidential campaign was the promise to “immediately terminate” President Obama’s executive order creating DACA, it seems likely that if re-elected, he will again try to end the program.
Over 90 percent of DACA program participants are currently employed; almost half of them are in school, working toward a brighter future in this country. Many of those who are employed—over 25,000—are frontline workers responding to the coronavirus pandemic. Their deportation would have been devastating not only to them, but to the health of the United States.
Fortunately, that result has been avoided, for now. But current DACA recipients should take appropriate action to renew benefits as soon as they are able, and those who are eligible for DACA but have hesitated to apply because of the uncertainty of the program’s future should now move forward with an application.