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ProtestThis month, the Supreme Court heard oral arguments in three cases that will affect the fates of nearly 700,000 “Dreamers”, undocumented migrants who arrived in the country as children that had been given temporary permission to stay under the Deferred Action for Childhood Arrivals (DACA) program. The program, which former President Obama created in 2012, allowed for people who arrived without documentation in the U.S. before turning 16 and who graduated high school or enlisted in the military to remain in the country and get a temporary work permit, subject to annual renewal.

While the judgment seems to be leaning one way, what remains to be seen is if the Supreme Court will rule that a slightly different program will be possible. If the court rules that the Trump administration’s stated reasons to end DACA are valid, that ends the program for now, but does not limit the power of future presidents to make another DACA, or the possibility for a “grandfather clause” that allows only those who have already received deferred action to remain in the country.

The plan was controversial upon implementation, with several Immigrations and Customs Enforcement (ICE) agents suing, alleging that the order creating DACA made them violate federal law. Judge Reed O’Connor of the northern district of Texas, a noted conservative, ruled that the agents did not have standing to sue the government about an executive order. O’Connor reiterated his view that DACA was unconstitutional, but denied the agents’ motion on procedural grounds. The Fifth Circuit upheld the ruling on appeal. After several other challenges that were rejected for lacking standing, the Supreme Court tied 4-4 on Texas v. United States, leaving in place an injunction that blocked an expansion of deferred action, but allowed DACA to continue as it then existed. In 2018, a coalition of seven states, led by Texas, sued the federal government for usurping Congress’ power to make immigration law. This case, Texas v. United States, along with two others including Department of Homeland Security v. Regents of the University of California, will be ruled on by the court this term.

The Regents case was filed by the University of California system in the Northern District of California almost immediately after President Trump announced his intention to repeal DACA in September 2017. UC System’s President Janet Napolitano was Secretary of Homeland Security under Obama. The university system argued that the decision was arbitrary and capricious and did not follow the Administrative Procedure Act, a law that details how administrations should rescind executive orders. Alexander Berengaut, a Covington & Burling LLP attorney representing the UC system pro bono said, “Whenever an agency like the Department of Homeland Security ends a program that will have a significant impact on a large number of people, there are procedural steps that need to be followed.” The university does not deny that the Trump administration could repeal the order creating DACA or that such a revocation would be legal, but that proper procedure has not been followed in this case.

This argument is bolstered by a unanimous ruling by the Supreme Court that the current president can rescind any executive order at any time, as long as the administration gives a legal reason for why it wants to rescind the order. This could be as simple as claiming the order does not mesh with current immigration policy goals. One reason the Trump admin has not simply replaced the order, UC alleges, is that it is using the fate of “Dreamers” as a bargaining chip to get funding for the president’s signature border wall proposal. Another possible reason, legal analyst Ian Millhiser argues, is to permanently remove the president’s power to reinstate DACA or any such measure like it. A Supreme Court case ruling the act illegal because it unconstitutionally transferred power from Congress to the president would make it illegal for any future president to make any order that defers deportation on any immigrants without congressional approval. The Supreme Court’s new conservative majority could plausibly rule like this, which would also immediately end protection under DACA for those currently receiving it.

There is little question that the Trump administration can, and very likely will, repeal DACA in some form or another. The outcome, along with most cases argued this term, will be released in June 2020 before the court’s current term ends.

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