Hard-line conservatives in the Trump administration decide they want to alter an executive policy from the Obama era. They gather together to discuss their plan and realize that it is politically unpalatable: The real reasons for their decision are deeply infected with xenophobia and racism. So, instead, they craft an alternative explanation, one ostensibly rooted in fidelity to the law. When the new policy gets challenged in court, the administration’s lawyers rely upon this substitute rationale. The Supreme Court must then decide whether to accept this pretext or force the government to try again, this time with candor.
This scenario is precisely what happened in the census citizenship case, which culminated in the court—or, more precisely, Chief Justice John Roberts—refusing to play along with the administration’s pretext. And it is also exactly what happened when Trump attempted to rescind Deferred Action for Childhood Arrivals, a program that lets many undocumented immigrants who were brought to the U.S. as children live and work here legally. Yet the DACA case could be heading toward a very different outcome. Judging from Tuesday’s oral arguments, five justices appear poised to uphold the administration’s decision to end the program, subjecting more than 700,000 DACA beneficiaries to deportation. And it may do so in part because Roberts does not actually understand the stakes of the case or the depths of the administration’s deception.
President Barack Obama implemented DACA in 2012 after Congress failed to pass the DREAM Act, which would’ve granted legal status to individuals who were illegally brought to the U.S. as children. DACA granted these “Dreamers” deferred action, delaying their deportation indefinitely so long as they met certain qualifications. (Most notably, applicants could not have a serious criminal record.) Under federal law, deferred action triggers a host of benefits: DACA beneficiaries obtained work permits, Social Security numbers, and driver’s licenses. They paid taxes like anyone else. In the eyes of the law, they effectively became Americans in every sense but citizenship status.
Although he said he’d kill DACA in office, President Donald Trump was obviously ambivalent about the program at the start of his presidency. It has always been popular with the public, and Trump promised to treat Dreamers “with heart.” As the months passed by, Trump’s subordinates took matters into their own hands. As Julie Hirschfeld Davis and Michael D. Shear report in their new book Border Wars: Inside Trump’s Assault on Immigration, three men—Attorney General Jeff Sessions, White House adviser Stephen Miller, and Department of Homeland Security official Gene Hamilton—hatched a plot. They asked a group of Republican state attorneys general to write to the Justice Department, threatening to sue unless Trump repealed DACA. After the attorneys general sent their demand, the trio ambushed acting DHS Secretary Elaine Duke, ordering her to go along with the scheme. Sessions then sent Duke a one-page letter telling her to end DACA because it is “unconstitutional” and lacks “proper statutory authority.” Duke complied, issuing a memorandum winding down DACA that included a single sentence of legal analysis essentially copied from Sessions’ letter.
Everyone agrees that Trump has the authority to abolish DACA. The only question is whether the administration did so legally. Presidents have broad leeway to scrap their predecessors’ programs. But they must “provide a reasoned explanation for the change,” and their actions cannot be “arbitrary and capricious.” After Sessions announced DACA rescission (in a speech that peddled nativist lies), a number of Dreamers, states, educational institutions, and nonprofits filed a lawsuit alleging that the administration flunked this test. Three federal district courts agreed, blocking the repeal. Former DHS Secretary Kirstjen Nielsen then issued a new analysis rationalizing the earlier memos, which a court dismissed as “yet another attempt to disguise” the administration’s real reasons for ending the program.
On Tuesday, the Supreme Court heard oral arguments to decide whether these lower courts got it right. (The justices also debated whether they can even review DACA repeal in the first place, though a majority seemed eager to get to the merits.) Justice Sonia Sotomayor asked Solicitor General Noel Francisco a question that cut to the heart of the dispute. No court had found DACA to be illegal when Trump tried to rescind it. Yet the administration’s entire rationale rested on its purported illegality. How, she wondered, is that a “reasoned explanation”? “This is not about the law,” she said. “This is about [the administration’s] choice to destroy lives.” Shouldn’t the executive have to own up to this “political decision”? Or can it hide behind legalistic argle-bargle to dodge accountability?
Francisco responded that the administration’s “serious doubts about its legality” justified DACA’s demise. Justice Elena Kagan asked him to elaborate; “what,” she wondered, “did DACA violate?” Francisco claimed that the program “affirmatively facilitate[s] violations” of the law “by hundreds of thousands of individuals to whom Congress has repeatedly declined a pathway to lawful status.” But federal law, Kagan said, grants the executive “broad discretion over national immigration enforcement policy.” Francisco responded that DACA took this discretion so far that it “undermines confidence in the rule of law itself.”
Justice Stephen Breyer asked Francisco about “reliance interests”—the right of DACA beneficiaries, their families, and their communities to rely on the program. These individuals have relied on DACA to build their lives in America. Why, Breyer wondered, did the administration not “take into account that broad range of interests?”
This line of questioning eventually led Roberts to tip his hand. When former Solicitor General Theodore Olson approached the lectern to defend DACA, he noted that the program allowed “hundreds of thousands of people” to remain in the U.S., “which has engendered reliance.” Roberts interrupted, looking slightly peeved. “But, Mr. Olson,” he said, “the whole thing was about work authorization and these other benefits. Both administrations have said they’re not going to deport the people. So the deferred prosecution or deferred deportation, that’s not what the focus of the policy was.”
This claim is simply wrong. Acting U.S. Citizenship and Immigration Services Director Ken Cuccinelli told reporters in October that if DACA dies, its former beneficiaries “will join the ranks of millions of people” subject to deportation. Moreover, the Trump administration has fought aggressively to deport several DACA recipients, even fabricating evidence to falsely accuse one Dreamer of gang affiliation. Trump and his associates have given Dreamers every reason to believe that they may be sent back to a country they do not even remember if they lose DACA protections.
The arguments went downhill from there. When California Solicitor General Michael Mongan, arguing on behalf of Dreamers, explained that previous presidents had also deferred deportation for classes of immigrants, Roberts looked offended. “That history is not close to the number of people covered by DACA,” he lectured Mongan. Roberts also pointed out that the U.S. Court of Appeals for the 5th Circuit had blocked a successor program, DAPA, that would’ve deferred deportation for the parents of citizens and legal residents. The Supreme Court deadlocked 4–4 on DAPA’s legality after Justice Antonin Scalia died, affirming the 5th Circuit by default.
“Is it enough,” Roberts asked, for the attorney general “to say, ‘Look, I’ve got a decision from the 5th Circuit that tells me this is illegal, it’s been affirmed by the Supreme Court by an equally divided vote. That’s enough for me to say we’re not going to do it’?” When Mongan disagreed, Roberts sounded exasperated. “Do you need more than that?” he asked. “You’ve got a court of appeals decision affirmed by an equally divided Supreme Court. Can’t he just say, ‘That’s the basis on which I’m making this decision’?”
That is, in fact, more or less what the administration said when it announced DACA rescission. It asserted that DACA “has the same legal and constitutional defects that the courts recognized as to DAPA.” Roberts seemed to be defending the administration’s logic, confident that it already provided the “reasoned explanation” required by law. No other conservative justice indicated that he would vote to block DACA’s rescission. Without Roberts, Dreamers are probably careening toward a 5–4 loss.
Shortly before the justices heard arguments on Tuesday, the Southern Poverty Law Center published a horrific exposé of Stephen Miller’s deep ties to the white nationalist movement. The article detailed Miller’s affinity for outwardly racist websites, literature, and conspiracy theories, as well as immigrant laws rooted in eugenics. This animus, not some deep concern for “the rule of law,” is what lies behind the Trump administration’s push to end DACA. It was racism, too, that motivated the administration’s quest to add a citizenship question to the 2020 census—racism papered over with lies so brazen that Roberts could not accept them. This time around, however, the chief justice seems unwilling to peer beyond the government’s pretext. And so his court could soon condemn 700,000 Dreamers to fear deportation from the only home they’ve ever known.