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Dream Delayed: Why is DACA in the Supreme Court, and Does the Court’s Opinion Really Matter?

For over two years, I’ve been digging deep into the weeds of how America’s immigration system operates and how that affects families and communities right here in Nevada. Yesterday, the U.S. Supreme Court held oral arguments on three DACA cases that may very well decide the fate for at least 700,000 immigrants whose status has come under attack by the Trump administration…

Or not. That is, immigrant communities here in Nevada and across the nation may have to wait until November 2020 to know whether they will finally obtain the deportation relief that’s been offered and denied for over seven years. Below, I explain why this is the case.

So what exactly is the Supreme Court deciding?
Photo by Jeff Kubina, licensed under Creative Commons, and made available by Wikimedia

Yesterday, the U.S. Supreme Court finally held oral arguments on the long-awaited Trump v. NAACP, McAleenan v. Vidal, and Department of Homeland Security v. Regents of the University of California cases that will lead to a decision on the legality of DACA and President Donald Trump’s drive to destroy the program that defers deportation for over 700,000 immigrants who were brought to the U.S. as children undocumented. At issue are the legal questions of whether former President Barack Obama had the constitutional authority to unilaterally establish DACA in 2012, and whether current President Donald Trump utilized the proper legal process when he unilaterally moved to shut DACA down in 2017.

As Vox’s Ian Millihiser explained on Monday, there are probably three options the Court is considering. First, a majority of Justices may fully affirm lower court decisions that rejected Trump’s move to end DACA because he usurped the courts’ role to interpret federal law instead of citing policy reasons. Second, a majority of Justices may affirm Trump’s executive authority to rescind executive action(s) from a previous administration (in this case, Obama) and sidestep the larger question of how much authority any president has to enforce immigration laws without explicit Congressional approval. And third, a majority of Justices may outright rule that Obama violated separation of powers by usurping Congress’ role to make laws by establishing DACA, abolishing the program and constraining future presidents’ ability to use executive action to provide deportation relief.

It’s virtually guaranteed that Trump will be able to end DACA regardless of how the court rules, but at least the first and second options will preserve a future Democratic president’s legal ability to reinstate DACA and/or establish an expanded deportation relief program. But if all five Republican-appointed Justices choose the third option, then a President Julián Castro, Kamala Harris, Elizabeth Warren, Bernie Sanders, or Joe Biden will be legally forbidden from reviving DACA, and they’ll instead be left with whatever the new Congress passes (if anything).

“We own this.” 
– Solicitor General Noel Francisco, during oral arguments to the U.S. Supreme Court
On April 10, 2017, Chief Justice John G. Roberts, Jr., administered the Constitutional Oath to the Honorable Neil M. Gorsuch in a private ceremony attended by the Justices of the Supreme Court and members of the Gorsuch family. The oath was administered in the Justices’ Conference Room at the Supreme Court Building. Chief Justice John G. Roberts, Jr., and Judge Neil M. Gorsuch in the Justices’ Conference Room, Supreme Court Building. Photo provided by the U.S. Supreme Court.

Apparently during yesterday’s oral arguments, Solicitor General Noel Francisco voiced confidence that the Supreme Court will affirm the White House’s decision to end DACA, even to the point of simply saying, “We own this.” And as nearly everyone expected, the Republican-appointed Justices sounded open to Francisco’s argument while the Democratic-appointed Justices rejected it.

However, several of the Republican-appointed Justices offered just enough mixed signals to leave room for doubt on what the final ruling will declare. While Chief Justice John Roberts signaled hostility to the broad strokes of Obama’s 2012 executive action that suggests he might want the third option to overturn the entire legal framework for DACA, Justices Neil Gorsuch and Brett Kavanaugh voiced uneasiness over Trump’s neglect to give proper policy reasons to end DACA, which leaves the door open that they may join the Democratic-appointed Justices for the first option of affirming lower courts’ decisions to overturn Trump’s revocation of DACA and essentially requiring that Trump restart the process of ending DACA.

While the Court’s deliberating the legal questions surrounding Trump’s push to end DACA, the nearly 13,000 Nevadans who’ve been “DACA-mented”, Nevadans like Astrid Silva, Jazmin Cortez, and Deisy Castro, continue to live with at least 700,000 more DACA recipients across the nation in the midst of existential questions of how much longer they can live here in the U.S. without constant, immediate fear of arrest and deportation. 

“Justice is on the ballot!” 
– U.S. Senator Kamala Harris, at the Culinary Union’s town hall on November 8
Photo by Andrew Davey

Regardless of how the Supreme Court rules next June, it’s virtually guaranteed that the Court will not have the final word on what happens to DACA recipients and other immigrants being targeted for deportation by Trump. Ultimately, this decision will likely rest with voters next year. Not only will voters decide whether Trump gets a second term or gets “repealed and replaced” by a new Democratic president, but voters will also decide whether Congress has enough votes in 2021 to pass any kind of humane, comprehensive immigration reform legislation.

Back in June, Senator Kamala Harris promise a broad suite of executive actions to not only reinstate DACA, but also expand it to more family members and revise the federal government’s official interpretation of the Immigration and Nationality Act to create a path to citizenship via executive action. At the Culinary Union hall in Las Vegas last Friday, she reiterated that promise. As Harris exclaimed to the ebullient crowd of union workers, “I will bring DACA back to protect our DREAMers and extend it to their family and siblings.” Harris also exclaimed, “Justice is on the ballot!,” and reminded the crowd that none of this can happen unless Democrats defeat Trump next year.

Photo by Andrew Davey

Just this week, fellow Senator Bernie Sanders (I-Vermont) released his own immigration reform plan. In a big break from Sanders’ past use of restrictionist language and past opposition to comprehensive reform, Sanders’ new immigration plan appears to go further then fellow Senator Elizabeth Warren’s (D-Massachusetts) and former HUD Secretary Julián Castro’s respective plans in setting a five-year timeline for offering legal protection (including the option of citizenship) for immigrants with undocumented status, fully demilitarizing the U.S.-Mexico Border with a breakup of ICE and CBP and reorganization of their offices into other federal agencies, and offering greater protections for immigrant workers by redirecting resources from immigrant raids to workplace safety enforcement. Yet like Harris, Warren, and Castro, and several other Democratic candidates, Sanders wants to expand DACA, reverse Trump’s anti-immigrant executive actions, and liberally utilize executive authority to offer relief to immigrant communities if Congress doesn’t act.

No really, this may come down to your ballot (or at least, voters’ ballots in presidential and Senate battleground states).
Photo by Andrew Davey

Bringing this back full-circle, the Supreme Court’s DACA ruling likely won’t have much impact on what Trump does, but it will affect what the next Democratic president can do should they defeat Trump. Especially if the Republican-appointed Justices take the third option of dramatically restricting presidents’ ability to change federal immigration policies without Congressional action, then the center of gravity will inevitably move from the White House to Capitol Hill.

Here in Nevada, Reps. Dina Titus (D-Las Vegas), Susie Lee (D-Las Vegas), and Steven Horsford (D-North Las Vegas) all voted to pass the American Dream and Promise Act (H.R.6) in June to offer a path to citizenship for DACA-eligible immigrants and reinstate full legal protection for refugees who had been covered under the TPS and DED programs. Rep. Mark Amodei (R-Carson City) voted with 186 other Republicans against H.R.6, while seven Republicans voted with Democrats to pass it. Yet despite the House’s vote to pass, the Dream and Promise Act currently languishes in the Republican-run Senate. If the Supreme Court takes the third option of declaring DACA illegal, then the 2020 U.S. Senate elections will probably determine whether Senators Catherine Cortez Masto (D) and Jacky Rosen (D) will have enough like-minded colleagues in their chamber to pass the Dream and Promise Act to resolve DACA once and for all.

Even if the Supreme Court opts for a narrower DACA ruling that keeps the door open for broader executive actions, bigger moves like decriminalization of undocumented border crossings and major changes to the immigration enforcement system will almost certainly require Congressional action. So ultimately, the Supreme Court’s opinion on DACA and the overall immigration system may not matter as much as voters opinions’ in states like Maine and North Carolina. And ultimately, the immigrants whose future in America has been thrown into doubt by Trump may have to wait until all the ballots are counted in Colorado and Arizona to know what becomes of their status. Ah, ain’t that America.

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