Prior to June 15th of 2012, millions of children were raised in the shadows of the United States before their sixteenth birthday due to circumstances well beyond their control. As an undocumented immigrant you are unable to procure the government issued documentation to apply for college; travel by plane; secure work authorization; open bank accounts; obtain credit cards; access public benefits like healthcare; enlist in the armed forces; all while living in a constant state of fear of deportation to a country you have never known. This is the harsh reality for millions. Still, despite never truly becoming a full citizen of the United States, these dreamers thrived and became key contributors to American society.
The Deferred Action for Childhood Arrivals (DACA) program was implemented by the Obama administration as an attempt to shelter “Dreamers.” Under current immigration law, the majority of these undocumented children have no way to gain legal residency within the United States; however, the DACA program allows recipients to attend college or enlist in the military and gain work authorization, amongst other benefits. This program had very little backlash from either party among its implementation. According to a Politico/Morning Consult poll, 58% of voters think Dreamers should be able to stay and become citizens if they meet certain requirements. 84% of Democrats, 74% of independents and 69% of Republicans think they should stay. Still, on September 5, 2017, President Trump ordered an end to the Deferred Action on Childhood Arrivals (DACA) program.
On November 12th, 2019 the justices heard the testimonies of three consolidated cases- Trump v. NAACP, Department of Homeland Security v. Regents of the University of California, McAleenan v. Vidal. Combined, they argue that Trumps decision to terminate the program was a violation to the Administrative Procedure Act and will collectively decide the fate of the Obama-era policy, Deferred Action for Childhood Arrivals. Over the course of their deliberations, the justices have agreed to rule on two questions: whether the government’s decision to end DACA judicially reviewable and whether the decisions to end DACA is legal.
The government has maintained that the decision to end DACA is not judicially reviewable due to the fact that the decision to end DACA is the kind of agency action that is typically immune to judicial review. The challengers have state that the courts do typically review government policies with ties to immigration. They further back their argument by arguing that even if this government action would have typically been immune to judicial review, the government’s rationale for the termination of this program was that DACA was illegal and therefore reviewable.
In the argument of DACA’s legality, the Trump administration has maintained that they have the right to discontinue a program put in place by the former administration, something no one has argued against. However, under the APA the agency has to prove “genuine analysis and lucid explanation of relevant policy considerations before reversing a long-standing policy and subjecting 700,000 individuals to deportation to unfamiliar nations where they may not even speak the language.” When the Department of Homeland Security did file their decision to end DACA though, they included very little explanation other than it just being “illegal.” Therefore, the termination of DACA was not legal in the way that the process was originally conducted.
The decision to terminate the DACA program is not one that will be taken lightly. With the lives and livelihoods of hundreds of thousands of young immigrants on the line, this bill has sparked interest across the nation. What once was a very uncontroversial and non-partisan issue when the DACA program applied only to the children who arrived before they were 16 years old, had become increasingly problematic by the push from the Obama administration to include the parents of these children as well. President Donald Trump himself waited a whole seven months into his term to address this issue, during those seven months he had indicated that his administration would “allow the dreamers to stay.” Even going so far as to publish “The June 15, 2012 memorandum that created the Deferred Action for Childhood Arrivals (DACA) Program will remain in effect” at the bottom of a memo the Department of Homeland Security released on June 15th, 2017.
During the hearing reporters came back saying that the justices seemed split and hard to read to get a clear understanding of where they stood on the issue. We will have a decision by the summer.