The Supreme Court ruled Thursday that President Donald Trump's bid to rescind the Deferred Action for Childhood Arrivals (DACA) program was unlawful, dealing a blow to the president on a signature domestic policy issue.
Chief Justice John Roberts delivered the five-to-four decision, which capstones a first term for Trump that has seen little progress on immigration, to the disappointment of his supporters. The Court found that the administration did not give sufficient explanation for the move, as required by law.
"We do not decide whether DACA or its rescission are sound policies," Roberts wrote. "The wisdom of those decisions is none of our concern. We address only whether the agency complied with the procedural requirement that it provide a reasoned explanation for its action."
The president framed the decision in starkly personal terms and promised to produce a new list of Supreme Court nominees by Sept. 1. In an early afternoon tweet, Trump said recent decisions underline the importance of selecting justices who will protect the Second Amendment and the right to life.
I will be releasing a new list of Conservative Supreme Court Justice nominees, which may include some, or many of those already on the list, by September 1, 2020. If given the opportunity, I will only choose from this list, as in the past, a Conservative Supreme Court Justice…
— Donald J. Trump (@realDonaldTrump) June 18, 2020
DACA delays deportation for individuals who entered the country illegally as children. Recipients are eligible for benefits like work permits, though DACA status must be reauthorized every two years. There are approximately 700,000 DACA enrollees.
President Trump has promised to strike a deal with Congress affording lasting protections for DACA recipients in exchange for border control measures. The chances of such a grand bargain looks dim after Thursday’s decision, with congressional attention fixated on the coronavirus pandemic, police reform, and a general election in the offing. Solutions could be difficult to come by even among Republicans, as GOP lawmakers have proved somewhat fractious on immigration issues.
Former vice president Joe Biden has promised to extend DACA by executive order if he prevails in November. The program is generally popular with the public. Surveys consistently show voters favor legal protections for enrollees.
No one disputes that the president has the power to end DACA. Instead, the focus of Thursday's case is whether administration officials followed procedural rules when terminating the program.
The Trump administration set DACA’s termination in motion in September 2017, when former attorney general Jeff Sessions sent a letter to the Department of Homeland Security (DHS) advising that the program is unlawful and should be rescinded. Acting DHS secretary Elaine Duke then announced in a memo that the department would stop accepting DACA renewal applications. Duke cited the Sessions letter and a 2015 decision of the Fifth U.S. Circuit Court of Appeals that struck down a related amnesty program.
The decision was immediately challenged in federal courts around the country. Federal trial judges in California, New York, and Washington, D.C., sided with the challengers and ordered DHS to resume processing DACA renewal applications.
Broadly speaking, the lower courts questioned whether DACA is actually unlawful. They also said the government didn’t adequately explain its decision to end the program. In their view, the Sessions letter and the Duke memo should have weighed the economic and social consequences for Dreamers. Ted Olson, a lawyer who represents DACA recipients, opened his argument in November on that point.
"The government's termination of DACA triggered abrupt, tangible, adverse consequences and substantial disruptions in the lives of 700,000 individuals, their families, employers, communities, and the Armed Forces," Olson told the justices. "That decision required the government to provide an accurate, reasoned, rational, and legally sound explanation. It utterly failed to do so."
The Court nodded to that argument Thursday, saying the government should have taken such considerations into account.
The principal flaw Roberts flagged is that Sessions’s letter and Duke’s memo focused on the benefits DACA recipients collect, like work permits. They said nothing about the very crux of the program—delayed deportation, called forbearance.
"The rescission memorandum contains no discussion of forbearance," Roberts wrote. "Duke entirely failed to consider that important aspect of the problem."
The administration argued its decision couldn’t be challenged in the first place. The Justice Department said rescinding DACA is much like a prosecutor’s choice whether or not to bring criminal charges, which can’t be challenged in Court.
Roberts rejected the analogy. The fact that DACA grants benefits and delays deportation "is an action that provides a focus" for courts, he wrote.
In a small victory for the government, the Court rejected arguments that DACA’s termination was unlawful due to Trump’s alleged animus against Hispanics. Justice Sonia Sotomayor was the only member of the Court who did not join that section of Roberts’s opinion.
"The words of the president help to create the strong perception that the rescission decision was contaminated by impermissible discriminatory animus," Sotomayor wrote in a separate opinion.
In dissent, Justice Clarence Thomas warned that the Court’s decision will force future presidents to stick with illegal policies inherited from their predecessors.
"Under the auspices of today’s decision, administrations can bind their successors by unlawfully adopting significant legal changes through executive branch agency memoranda," Thomas wrote. "Even if the agency lacked authority to effectuate the changes, the changes cannot be undone by the same agency in a successor administration unless the successor provides sufficient policy justifications to the satisfaction of this Court."
Justices Samuel Alito and Brett Kavanaugh handed down solo dissents. Alito noted that courts have been considering DACA’s recession for so long that they have effectively run out the clock on Trump’s first term.
"Our constitutional system is not supposed to work that way," he wrote.
Kavanaugh pointed to a memo former DHS secretary Kirstjen Nielsen released on DACA’s termination in 2018. The justice argued that Nielsen’s memo, which further explained the Duke memo and offered additional reasons for ending DACA, should "pass muster as an explanation for the executive branch’s action."
The case is No. 18-587 Department of Homeland Security v. Regents of the University of California.
This post was updated at 10:44 a.m., 12:00 p.m., and 1:52 p.m. with further information.