The Supreme Court is finally going to decide the fate, after its next term starts in October, of the hundreds of thousands of immigrants currently protected from deportation by the Deferred Action for Childhood Arrivals program created by President Barack Obama in 2012.
The Court agreed to hear the DACA case Friday, on its last day before summer recess. It will hear oral arguments in the case at some point after the next term starts in October, with a decision likely coming sometime in the first half of 2020 — possibly as late as the end of June.
That timeline matters a lot to the approximately 600,000 immigrants who have managed to retain their DACA protections over the past two years, since the program has been in limbo since President Donald Trump attempted to wind it down in 2017. They have had to time their applications for DACA renewal to maximize their time protected, waiting long enough to apply so that they’re protected for as long as possible if the Supreme Court decrees that no new renewals can be issued, but not so long that DACA might be ended first.
The DACA case will be one of the most hotly anticipated of the Court’s next term. And with the Supreme Court having shown in 2018 (in the travel ban case) that it was willing to defer to the Trump administration’s immigration policy, but having shown in 2019 (in the census citizenship-question case) that it wasn’t willing to look the other way when the administration lied about why it was making decisions, it is genuinely unclear which way the Court will rule.
DACA — and the immigrants protected by it — have been in limbo for two years
From 2012 to 2017, DACA was open to applications from unauthorized immigrants who came to the US under the age of 16 and before June 2007; who were under age 31 as of 2012, when Obama created the program; and were at least 15 when they applied. If they applied and passed background checks, they were given a two-year grant of protection from deportation and a work permit.
In September 2017, Trump ordered the Department of Homeland Security to stop taking new applications and to wind down the granting of renewals for people already covered under DACA. The first was successful. (Tens of thousands of immigrants who were younger than 15 when Trump suspended applications in 2017 would now be eligible for DACA if it were fully reinstated.)
The second Trump order — ending renewals for current DACA recipients — was thwarted in January 2018, when a California judge put a hold on Trump’s plans. That ruling was appealed, and it, as well as several other lawsuits against DACA (none of which have gone the administration’s way), is what the Court is agreeing to hear next term.
The Trump administration tried to accelerate this timeline by getting the Supreme Court to hear a DACA case last spring. The Court refused. It tried to push the Court to take up the case last fall, for the term that just ended, but for months, the Court didn’t grant the petition. Now it finally has.
In the meantime, immigrants have been able to keep applying for renewals. Now they have to try to predict when the Court might rule — and see if it makes sense to reapply now, even if they only applied for their last renewal a year ago, or wait and see how long it takes for the Court to rule.
The worst-case scenario for Trump at SCOTUS is a census-case-style do-over — but like the census case, this one might not have time
The legal question at the heart of the DACA case is whether the Trump administration violated the Administrative Procedure Act by ending DACA without proper consultation and comment from inside and outside the government.
The Trump administration definitely didn’t check the APA boxes that an agency has to check when creating a new regulation. But the Obama administration didn’t do that in creating DACA, either. So the question is essentially whether it’s illegal to skip steps in ending a program just because steps were skipped in creating it — and because there is now a group of people (DACA recipients themselves) who would be harmed by ending it, several judges have found that it is.
A related question is whether the Trump administration’s stated reason for ending DACA — that it was worried the program was unconstitutional, even though DACA had never been successfully challenged in court — was the true reason for ending it. If that sounds familiar, it’s because that was also the key question in the census citizenship case that the Supreme Court decided Thursday, in which it ruled against the administration for attempting to add a citizenship question to the census based on a pretext.
As with the census case, if the Court rules against the administration on DACA, it will likely just tell the administration to go back and try again but do it legally this time. But just as the Census Bureau is now running up against deadlines to finalize forms in advance of next spring’s census, the Trump administration might run up against another deadline — the presidential election — in trying to end DACA again.
Congressional Republicans have lined up behind Trump on most immigration issues, but they were panicked when he tried to end DACA because the program’s recipients are highly integrated, highly sympathetic immigrants. If the Supreme Court rules in June 2020 that the Trump administration has to make a new effort if it wants DACA killed, some Republicans might not find it worthwhile. And, of course, it’s not at all certain that the administration would be able to pull together a new rationale in time before January 2021 — or that Trump would still be in office afterward.
It’s possible, in other words, that DACA remains in its zombie form until someone else is president. But it’s impossible to judge how likely that is. And that leaves DACA recipients in limbo still.
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