A divided Supreme Court rejected the Trump administration’s push to end an Obama-era program that gives nearly 700,000 so-called Dreamers the ability to work in the United States and avoid deportation, ruling Thursday that the government hadn’t followed federal procedural requirements.
The 5-4 ruling inserts the huge immigration issue of the Deferred Action for Childhood Arrivals program, known as DACA, back into presidential politics just months ahead of the November elections. The fate of the DACA program could hinge on who wins the White House.
The decision also resets the nearly two-decades-old push in Congress for more permanent protections for undocumented immigrants who arrived in the United States as children, but President Donald Trump for now still has the biggest say in what happens next.
The Trump administration has the ability to rescind the DACA program and can try again. But its first effort did not consider issues of forbearance from deportation and what, if anything, to do about the hardship to DACA recipients, Chief Justice John G. Roberts Jr. wrote for the majority.
“That dual failure raises doubts about whether the agency appreciated the scope of its discretion or exercised that discretion in a reasonable manner,” Roberts wrote. “The appropriate recourse is therefore to remand to DHS [the Department of Homeland Security] so that it may consider the problem anew.”
The majority, which included the four justices on the court’s liberal wing, pointed out that it was not ruling on whether DACA is a sound policy, only whether the government had a reasoned explanation for rescinding it, as required by the Administrative Procedure Act.
Trump tweeted responses to the decision, but did not immediately say whether he would try again to rescind the DACA program.
Sen. Richard J. Durbin, the Illinois Democrat who has pushed for protections for Dreamers, took to the Senate floor to urge him to wait until after the election.
Trump focused on the loss for his administration at the Supreme Court, which comes on the heels of a loss for the administration Monday in a decision that extended federal workplace anti-discrimination protections to gay, lesbian and transgender employees.
“Do you get the impression that the Supreme Court doesn’t like me?” Trump tweeted.
And Trump immediately interjected the decision into the presidential race.
“These horrible & politically charged decisions coming out of the Supreme Court are shotgun blasts into the face of people that are proud to call themselves Republicans or Conservatives,” Trump said. “We need more Justices or we will lose our 2nd. Amendment & everything else. Vote Trump 2020!”
The decision, which gives Dreamers reprieve if only for a short time, was the best possible outcome for immigration advocates. The question now is whether Trump would again move to rescind DACA just a few months ahead of the election.
Polls have shown that Americans largely favor protections for Dreamers, with several polls showing that about three-quarters of respondents say Dreamers should be allowed to stay and apply for citizenship.
The Trump administration said it had determined that the policy was unlawful and unconstitutional and revoked it in September 2017, although no court had ruled on its constitutionality. The Homeland Security Department later expanded on those reasons in a memo filed in one of the three lawsuits the Supreme Court reviewed.
Justice Clarence Thomas, in a dissent joined by Justices Samuel A. Alito Jr. and Neil M. Gorsuch, pointed out how Congress considered but did not pass more than two dozen bills to grant lawful status to Dreamers between 2001 and 2011 — and that that the DACA program had been created without statutory authorization or rulemaking and “was unlawful from its inception.”
“To state it plainly, the Trump administration rescinded DACA the same way that the Obama administration created it: unilaterally, and through a mere memorandum,” Thomas wrote. “The decision to countermand an unlawful agency action is clearly reasonable.”
Thomas described the majority’s decision to scrutinize such a program as “an effort to avoid a politically controversial but legally correct decision” that prolonged the initial Obama administration overreach “by providing a stopgap measure of its own.”
“In doing so, it has given the green light for future political battles to be fought in this Court rather than where they rightfully belong — the political branches,” Thomas wrote.
Thomas pointed out that the ruling means administrations can bind the next presidential administration by unlawfully adopting significant legal changes through a federal agency, and those “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.”
Immigration remains a divisive issue, and congressional inaction is the status quo. The House has sent to the Senate legislation that would grant permanent citizenship to up to 2.5 million undocumented immigrants, including Dreamers. The Senate hasn’t voted on the measure.
Ilya Somin, a law professor at George Mason University, said the ruling left unresolved the bigger questions about whether DACA’s provisions on lawful presence and work permits are legal.
“That issue may well continue to be fought over in lower courts,” Somin wrote in a statement. “In sum, today’s ruling does not definitively end either the legal or the political battle over DACA. Ultimately, only Congress can do that, by finally passing a law definitively protecting ‘Dreamers’ from deportation.”