The Trump Administration’s Plot to End DACA Faces a Supreme Court Test
On August 24, 2017, some twenty Trump Administration officials gathered in the Roosevelt Room, at the White House, for a meeting about the Deferred Action for Childhood Arrivals program, or daca, an Obama-era policy protecting from deportation nearly a million immigrants who came to the U.S. as children. In attendance were Attorney General Jeff Sessions, the White House adviser Stephen Miller, and an official at the Department of Homeland Security named Gene Hamilton, along with the President’s chief of staff, John Kelly, Kelly’s own chief of staff, Kirstjen Nielsen, and the acting D.H.S. Secretary, Elaine Duke. Miller scheduled the meeting for a day when Jared Kushner, a moderate voice on immigration, was out of town. On the campaign trail, the President vowed to undo Barack Obama’s signature immigration policies, but, once in office, he bowed to the overwhelming popularity of daca and claimed that he would treat its recipients “with heart.” Now Sessions and Miller were leading an effort to dismantle the program. “The President wanted to end daca, they said, and Duke was going to be the one to issue a memo killing it,” the Times reporters Julie Hirschfeld Davis and Michael D. Shear report in their recent book “Border Wars: Inside Trump’s Assault on Immigration.” “Miller and everyone else around the table was acting like this was a done deal.”
On Tuesday, after two years of wrangling in the federal courts, the Supreme Court will hear a suite of cases challenging the Trump Administration’s decision to cancel daca. A team of lawyers from the firm Gibson, Dunn & Crutcher, along with several groups of daca recipients, advocates, universities, and multiple states nationwide, will argue that the President ended daca without properly considering the impact the decision would have on its seven hundred thousand recipients and their families—more than a million people in total. A federal statute called the Administrative Procedures Act requires the government to provide transparent and substantial reasons for adopting public policies, whereas the Trump Administration, these groups have argued, acted in an “arbitrary and capricious” way, a violation of the law.
In the months before the August 24th White House meeting, a group of ten Republican state attorneys general, working in close coördination with Sessions, Miller, and Hamilton, wrote a letter to the Justice Department threatening to sue the government unless it ended daca. It wasn’t clear that the attorneys general would follow through with an actual lawsuit; nor was it assured that they could win in court. But their threat served as a pretext for Sessions to intercede. At the White House, Sessions and the other immigration hard-liners laid out their plan. According to a record of the meeting, a Justice Department memo “outlining the legal reasons that the daca program is unlawful” would be sent to D.H.S. by September 1st. D.H.S., in turn, would “draft a memorandum” to effectively end the daca program. The Republican state attorneys general threatening to sue would “dismiss” their case by September 5th. Meanwhile, the Administration would “develop a unified list of legislative items” for the President to bring to Congress to force an exchange: if Congress took up the President’s legislative priorities on immigration (increasing ice enforcement and building a wall along the southern U.S. border), then Trump would “consider signing legislation that addresses individuals who had previously been eligible to receive daca permits.”
The authors of daca in the Obama Administration were aware that the program would draw intense scrutiny. Janet Napolitano, who was the secretary of D.H.S. when the program was adopted, told me, “It was done with the assumption that, somewhere along the line, somebody was going to try to stop it.” In early 2012, teams of lawyers at the White House and Department of Homeland Security examined every aspect of the policy, and, according to an analysis by the Office of Legal Counsel, found it to be consistent with a well-established concept in criminal and immigration case law known as prosecutorial discretion. Every Presidential Administration since Eisenhower’s has extended reprieves from deportation, known as deferred action, to certain categories of undocumented immigrants who are considered low priorities for arrest. Since 1981, federal regulations explicitly authorized such immigrants to work in the United States.
daca came with an additional slate of eligibility requirements. Recipients, for instance, had to be either a student, a high-school graduate, or a member of the armed forces, and they couldn’t have a criminal record. “We made sure that the process that we set up for qualifying young people for daca was designed to do a case-by-case evaluation, that it wasn’t just a blanket grant of immunity from deportation,” Napolitano said. If applicants met the criteria, they could renew their daca status every two years, allowing them to work, apply for bank loans, and qualify for financial aid to go to college. Often, this afforded stability not just for individual recipients but for their entire families. Luis Cortes, one of the attorneys who will be defending daca at the Supreme Court on Tuesday, told me, “There are daca recipients who are taking care of their parents. They have more stable jobs because they can get Social Security numbers. Some of them have committed to mortgages. They have siblings or kids.”
Cortes, who was born in Michoacán, Mexico, came to the United States with his parents when he was a year old. He is now thirty-one, stocky and bespectacled, with wavy, dark hair and tattoos spidering up his forearms. His father was later deported, and the legal status of the rest of the family remains complicated. Cortes and his mother are undocumented, while his three younger siblings, who were born in the U.S., are American citizens. “The whole slogan you hear now—‘undocumented, unafraid’—is somewhat new,” he said. “I remember when I was undocumented and very afraid.” When President Obama announced daca, in the summer of 2012, Cortes had just finished his second year of law school. “I was very incredulous about the whole thing,” Cortes said. “I was, like, They want us to give all of that information about ourselves to the government!” Out of caution, he waited a year before applying. Yet, when he graduated, it was his daca status that allowed him to find a job at a small law firm just outside of Seattle.
In February, 2017, three ice officers in Des Moines, Washington, arrested one of Cortes’s clients, a daca recipient named Daniel Ramirez, on the false pretense that he belonged to a gang. Barely a month into the Trump era, it was the first instance of the government targeting a daca recipient for deportation. A team of lawyers from Gibson, Dunn & Crutcher and the advocacy group Public Counsel joined Cortes in representing Ramirez. On September 5th, they were still litigating the case when Sessions made the formal announcement that Trump had decided to cancel daca outright. A total of nine lawsuits were filed nationwide, including one from Cortes and the lawyers at Gibson, Dunn & Crutcher, to block the Administration’s move. (Three federal courts have since issued injunctions halting the cancellation of the program on the grounds that it violated the Administrative Procedure Act; current recipients have been allowed to renew their status as the government’s appeals move through the courts.) During oral arguments before the Supreme Court on Tuesday, Cortes will be sitting at the counsel’s table alongside the attorney general of California and Ted Olson, of Gibson, Dunn & Crutcher, who is a former Solicitor General and a longtime litigator at the Supreme Court. “As a lawyer, I’m very stoked about it,” Cortes said. “I didn’t think I would have a Supreme Court case this early on in my career. But it’s also daunting. I’m going to be looking at the people who get to decide whether my clients are going to get deported, and me along with them.”
The Trump Administration has offered a shifting set of explanations for the cancellation of daca. On September 5, 2017, the President claimed that “the program is unlawful and unconstitutional and cannot be successfully defended in court.” That same day, in his own announcement, Sessions said, without citing any evidence, that daca had encouraged illegal immigration. In court, the Administration argued that its rationale for ending daca was to address the threat of a lawsuit by the Republican state attorneys general. After a string of losses in the federal courts, the Administration issued an additional policy rationale, in a document called the Nielsen Memorandum: ending daca, it said, sent a “message” to discourage future immigrants from travelling to the border. “This case is not about whether the government can ever end daca or some other program,” Trudy Rebert, a staff attorney at the National Immigration Law Center, which also filed suit to block the Administration’s cancellation of daca, told me. “It’s about whether they did so lawfully—and, specifically, whether they did so in an ‘arbitrary and capricious’ manner or undertook reasoned decision-making. Agencies have a lot of power. Their decisions affect a lot of people’s lives, and these basic legal requirements are intended to insure some measure of accountability.”
For all the Administration’s evolving arguments, the White House meeting held on August 24, 2017, remains significant. Lawyers for the government have insisted that Elaine Duke, a career civil servant who’d been in charge of D.H.S. for less than a month, exercised her own discretion in ending daca and that, as a result, the courts could not review or override the decision. She had arrived at the meeting thinking that it would be a policy discussion, Hirschfeld Davis and Shear report in “Border Wars.” Miller never told her that the true purpose of the gathering was to set in motion daca’s cancellation, a move that Hirschfeld Davis and Shear described as a “procedural ambush.” The government’s own record of the meeting, Rebert told me, undercuts the Administration’s subsequent claims that Duke had made the decision after a thorough consideration of the policy. “It’s clear here that the decision to end daca was made on August 24th,” Rebert said. The process was “not that Secretary Duke got a letter from Attorney General Sessions and then independently decided to end daca.” Duke’s memo provides no actual policy reasons for ending daca; it simply restates Sessions’s claim that daca was unlawful. If cancelling the program was a foregone conclusion, and Duke’s memo merely served as a rubber stamp, then, as a matter of public policy, the government cannot claim to have acted in good faith.
A few weeks ago, I asked Napolitano what the Administration might have done differently to end daca in a more deliberative manner. “It would have been a real policy review,” she said. “It would have done a real cost-benefit analysis. It would have evaluated what the country was getting from daca recipients. It would have been a real administrative record.” (According to some estimates, if daca were rescinded, the U.S. economy would contract by more than four hundred billion dollars in the following decade.) Instead, she said, the Administration’s reasoning was “basically a one-liner”—that daca was unlawful and thus had to end. In a brief submitted to the Supreme Court on behalf of the daca recipients, Olson and Cortes point out that the Administration never bothered “to even consider” the legal arguments made by the previous Administration or to explain its “newfound disagreement.” “They never questioned DHS’s original reasons for adopting daca,” the brief argues, “nor suggested that the circumstances supporting the policy had changed.”
When I spoke with Olson, who’s presenting the case on Tuesday, he was ready with a range of arguments, from a defense of the lawfulness of daca to an indictment of how the Administration tried to end it. He also drew a comparison to a case from earlier this year involving the government’s attempt to add a citizenship question to the 2020 census. The Administration had claimed that the Justice Department had initiated the policy for the purpose of strengthening enforcement of the Voting Rights Act, but later testimony revealed that the White House had used that explanation as a cover. “The Supreme Court decided, ‘Well, you might be able to add that question, but you’ve got to be able to explain it, and you can’t give us bogus reasons for doing so,’ ” Olson told me. The daca case “is a rule-of-law case,” he added, “a rule-of-law case involving hundreds of thousands of individuals who will be hurt by an abrupt and unexplained and unjustified change in policy.”
There are a few potential outcomes at the Supreme Court. One is that the Justices rule directly on the lawfulness of the Administration’s cancellation of daca. The Court could also provide instructions for how the government would have to cancel daca if it wanted to do so lawfully. And, at the same time, the Court could even adopt a more sweeping stance on whether a policy like daca is lawful in the first place. In the meantime, Cortes’s daca status, which is good for two years, expires in 2021. Nonetheless, he plans to renew it in 2020, just in case something unexpected happens at the Supreme Court. “We’re anticipating a spring decision,” he told me. “So it might not be a bad idea to renew it around March and get an extra year.”