Policy protects nearly
800,000 young immigrants, many of whom are college students
The Supreme Court heard oral
arguments yesterday on whether President Trump’s decision to rescind the
Obama-era Deferred Action for Childhood Arrivals (DACA) policy was done legally,
the culmination of two years of legal action since the administration first
announced in 2017 that it would end the program.
DACA provides temporary legal
status and protection from deportation for nearly 800,000 young people known as
Dreamers, undocumented immigrants brought to the United States as children. The
case involves a trio of related disputes, with ACE members Princeton University
and University of California among the parties.
Presidents have broad leeway to
roll back initiatives implemented by their predecessors, but they must “provide
a reasoned explanation for the change,” and their actions cannot be “arbitrary
and capricious,” as Slate
reported last night. After then-Attorney General Jeff Sessions announced in August
2017 that DACA would be rescinded, a number of colleges and universities, states,
nonprofits, and Dreamers themselves filed a lawsuit alleging that the
administration’s actions did not pass this test. Three federal district courts
agreed, blocking the repeal.
Consensus this morning among
the media and court watchers was that the high court’s conservative judges sounded
inclined to clear the way for the administration to end the policy. Given the
conservative majority on the court, the best hope for DACA’s survival likely
depends on Chief Justice John G. Roberts Jr., as The
Washington Post and others noted.
However, the president’s
solicitor general, Noel Francisco, ran into steady criticism from the court’s
four liberal justices during the hearing, so a definitive outcome is not
at all clear. Inside
Higher Ed wrote that “Perhaps the sharpest moment in the hearing came
when Sonia Sotomayor, a member of the court's liberal wing, questioned the
government's legal arguments and asked where the government had articulated
clearly what she characterized as a political decision. ‘That this is not about
the law; this is about our choice to destroy lives,’ she said.”
Last month, ACE and 43 other
higher education associations submitted an amicus
brief in the case, writing that “DACA has been a symbol of tolerance and
openness of our university campuses" and that rescinding the policy would
broadcast a “message of exclusion" to other foreign-born students that would
“irreparably damage the reputation of America's higher education system in the
eyes of the world."
The ACE brief also speaks to
significant legal issues regarding the government's contention that the
executive branch's decision to rescind DACA is wholly exempt from judicial
review, a subject that was intensely addressed during oral argument.
“Sanctioning that remarkable argument would threaten to immunize from legal
scrutiny numerous other major decisions disguised as 'enforcement policies'
that impact our higher education system," the brief says. Francisco
told the justices that the Department of Homeland Security’s decision to end
DACA is not subject to judicial review at all. Theodore Olson, arguing in
support of DACA, urged the court to start with the “strong presumption” that
the federal agency’s actions are reviewable.
A final ruling in the case is not
expected until spring or summer 2020.
Background
President Obama established the
DACA policy by executive action in June 2012. DACA allowed undocumented
immigrants who arrived in the United States at a young age to become eligible
for a work permit, a Social Security card, a driver's license, and deferred
deportation. About 350,000 young people with DACA status are in school or
pursuing higher education.
The Trump administration rescinded the policy Sept. 5, 2017, but delayed ending
it until March 5, 2018. In granting a six-month delay, the president asked
Congress to pass legislation to provide a permanent solution for those currently
protected under DACA. Congress has not yet acted, but DACA in the years since
has been kept alive by court decisions, leaving these individuals in political
and legal limbo.
In a statement when
the Supreme Court took up the case, ACE President Ted Mitchell said it “only
underscores the urgent need for Congress to act now to pass a long-term,
bipartisan solution to protect Dreamers. Because it could easily be a year
before we have a final decision by the Court, this is not an excuse for
inaction by lawmakers."
The House in June approved
legislation—the American
Dream and Promise Act (H.R. 6)—that would provide a long-term
legislative fix for Dreamers, as well as those with Temporary Protected Status
and Deferred Enforced Departure, who have seen their status rescinded and also
live in uncertainty.
Earlier this year, Sens.
Lindsey Graham (R-SC) and Dick Durbin (D-IL) reintroduced the bipartisan Dream Act of 2019 (S. 874), a bill that would allow
many Dreamers to earn lawful permanent residence in the United States and a
path to citizenship, but the Senate so far has failed to take action on either
this or the House-passed bill.
Dreamers Advocacy Efforts
ACE sent a letter in
June on behalf of 43 organizations to Majority Leader Mitch McConnell (R-KY)
and Minority Leader Chuck Schumer (D-NY) requesting they make passage of
legislation providing permanent protections for Dreamers a priority.
Most recently, more than 600
college and university presidents signed their institutions on to a letter sent
to Capitol Hill Sept. 16, urging Congress to act now on protecting Dreamers,
and not to wait for the Supreme Court to decide the issue. The letter,
organized by ACE with assistance from a number of other higher education
associations, urges lawmakers to “come together on a bipartisan basis to
address this challenge by doing the right thing for these outstanding young
people and for our country."
For more information on DACA
and Dreamers, see the Protect Dreamers Higher Education Coalition webpage.