DACA’s Day in Court

Listen to this episode

S1: Here’s a bit of Washington trivia for you. Name federal legislation that Republican Gov. Mike Huckabee the Wall Street Journal editorial board and President Barack Obama all seemed to agree on ten years ago give up the House of Representatives is debating and voting on the DREAM Act this evening.

S2: And this the answer is immigration reform at least for dreamers. Dream stands for Development Relief and Education for Alien Minors. It would allow the children who entered the United States illegally before age 16 legal status to stay back in 2010.

S1: Congress is trying to pass a law that would allow these DREAMers kids whose parents brought them to the U.S. illegally to stay in the U.S. join the military go to school. But when this bill got to the Senate the DREAM Act it failed. After all the votes were counted. Democrats held this press conference. Senator Bob Menendez of New Jersey. He got up in front of a lectern and quoted a Langston Hughes poem.

S3: The bottom line is you know what happens to a dream deferred. Does it dry up like a raisin in the sun or does it explode. This dream is going to explode.

S4: Since then the dream has exploded into a years long political battle. First President Obama decided to move ahead without Congress. He signed this executive order offering dreamers deferred action on their immigration status meaning the U.S. wouldn’t try to remove these people from the country. The order became known as DACA. Then when President Donald Trump took office he pulled the plug on that executive order leaving nearly 700000 dreamers wondering what would happen next. Now the third branch of government has been dragged into this fight. The Supreme Court is hearing arguments about Dhaka today which is why I called up Slate’s Mark Joseph Stern how much do we know about how the public feels about Dhaka.

S5: The Deferred Action program eight in 10 Americans backtalk. According to a CNN poll according to a different poll nine in 10 Americans want DACA beneficiaries to stay in the United States.

S6: And here we are still arguing about it right.

S7: So many years later these poor people have totally laid down roots they are fully American in every way except their citizenship papers and they are still at risk of being uprooted from the only lives and homes they’ve ever known and sent back to a country that they in many cases don’t even remember.

S4: Today on the show Mark explain the political battle over DACA and why no matter how the Supreme Court rules this battle is far from over. I’m Mary Harris. You’re listening to what next. Stick with us.

S6: Well President Trump’s campaign for the White House clearly fanned the flames of anti-immigrant hate when it came to the dreamers. Once he got into office Trump couldn’t seem to make up his mind.

S8: Dreamers everything’s fine. But I want the children of the people from this country to also be dreamers who can show great heart.

S9: DACA is a very very difficult subject for me because you have these incredible kids in many cases not in all cases. And some of the cases they’re having DACA and they’re gang members and they’re drug dealers too.

S3: We love the dreamers. We love everybody. Thank you very much.

S1: But Trump had promised to repeal Daka and marches as Stern says that was a promise.

S5: Some Republican supporters were determined to keep and what happened was a bunch of Republican attorneys general from states like Texas colluded with hardliners in the administration like Stephen Miller the White House adviser and decided to create this pressure by sending the Trump administration a letter claiming that if the administration didn’t wind down torture that these states would file a lawsuit to try to kill it in court. I don’t know how involved Trump was but his advisers definitely encouraged this move. And so that led to internal pressure in the White House. I think I sort of pushed Trump toward repealing DACA and it led to this notorious meeting which has been documented in a number of reports now where basically Steven Miller waited until Jared Kushner who likes immigrants was out of town held this ambush meeting and told the acting secretary of the Department of Homeland Security at the time whose name was Elaine Duke. Hey Elaine you’re going to end Daka really soon we’re going to put all of it on you. We’re going to claim that you feel a need to end Dhaka and we’re going to claim that we have to do it because dock is illegal and that’s how Trump got to a place where he let his administration wind this down. There was this sort of artificial pressure and then Steven Miller led an ambush on the individual who is ostensibly the decision maker here who in fact all reports indicate did not really want to end at all.

S6: Well how does that get to Jeff Sessions because it was Jeff Sessions in that room too.

S5: Yes he was. And so the plot that was hatched was that Jeff Sessions was going to write a letter laying out the reasons why he believed Dhaka was illegal and then send it to Alan Duke again acting DHS secretary. And that Duke was going to sort of implement the letter and say hey Jeff Sessions is right. I totally agree. Dhaka has to die. How do we know all this. We know all of this from the excellent book by Julie Hirschfeld Davis and Michael D shear border war is inside Trump’s assault on immigration. And I strongly suspect that some individuals who are in that room talk to them because they were so unhappy with how things went down. It sounds like a mess a total mess. And this is actually the mess that grew into the Supreme Court case because the Supreme Court case is not about whether Trump has the power to end DACA. In theory everyone agrees that he could. The question is whether he did it in a legal way or whether all of this was so messy as to actually violate the law.

S6: This messiness it’s become a hallmark of the Trump administration. The judiciary has come down against the president’s rule changes again and again because they violate something called the Administrative Procedures Act. The EPA is a law that prevents the executive branch from acting suddenly or without a legal basis which is exactly what advocates say the Trump administration did when it decided to rescind Dhaka.

S10: And that just doesn’t fly at least under normal circumstances when the executive branch is making such a huge decision. You gotta give the people more than hey we think this is unconstitutional we’re not going to explain why but that’s our analysis. So sorry dreamers you’re screwed.

S6: Can we talk about who is arguing today and what they’re going to be saying. Let’s start with the lawyers arguing against rescinding DACA. First of all you have Ted Olson who’s been known as something of a conservative. He was solicitor general in the Bush administration and he’s arguing that this process is too much of a mess.

S10: Yes that’s correct. And I will add that Olson is someone I deeply respect. He is definitely a Republican. He is very much an establishment Republican. But he’s also I think a sort of moderate on social issues. He famously argued against California’s ban on same sex marriage for instance. And now he is arguing in favor of dreamers. I don’t think this red meat stuff really attracts him the way that some of the Republicans economic policies have. You know Ted Olson was out there arguing for striking down all campaign finance laws. You know he wants Republicans to be able to rake in the dark money but he doesn’t want 800000 dreamers deported. And it’s a very clever strategy to bring in this guy who has a lot of respect among the conservative justices who does usually go before the court to argue conservative causes to come out here and say hey I’m Ted Olson I’m a reasonable guy you conservative justices were at my wedding but I’m here to tell you that even if you don’t like DACA you gotta admit that the Trump administration screwed up this process that it was way too sloppy that they have to do this right because the president isn’t king. And again even if you think Doc is bad policy the worst policies have to be wound down in a lawful manner and that’s just not what the administration did here with the conservative justices literally at his wedding.

S5: Yes they were several of them were literally at his wedding because they all swim in the same circles. And you know it’s a it’s a celebration of joy and love whatever.

S11: Celebration of joy and love whatever.

S7: I’m not I’m not feeling super sentimental right now.

S6: You know get back to me around Valentine’s Day or something bingeing on chocolate and maybe I’ll Maybe I’ll have a sweeter take care but you also have someone else who’s going to be sitting at the table and I believe arguing a lawyer named Luis Cortez Can you introduce us to him a little bit.

S5: Yes. So Cortez and this is this is really extraordinary. He is a doc a beneficiary himself. He’s not going to argue actually but he will be at the table and he’s going to sort of be there to I think remind the justices that DACA beneficiaries are among us. They are just like us. They are lawyers and friends and family. And with DACA they have been able to thrive. There are all these estimates that show that if DACA is ended that the U.S. economy will lose billions upon billions of dollars because these individuals are so entrenched in the social and economic life of the nation. And I think this reflects a little bit the strategy that gay rights activists used when bringing these cases to the court where they had gay lawyers argue the case they had them be in the courtroom to remind the justices that these people aren’t the other they aren’t foreign. They are people you know people you love and have a little heart here. Please try to recognize that these individuals deserve some respect.

S6: So let’s talk about Noel Francisco the solicitor general in the argument he’s going to make. What what is his defense of how this policy was implemented.

S5: So his argument here and I think this is totally predictable This is exactly what any solicitor general would say in this situation is hey the executive branch gets to repeal the policies of its predecessor. And Trump came into office and he didn’t like the policy that Obama had implemented. And he gets really free reign. He gets a lot of leeway to say I don’t like this policy so I’m killing it. That is the basic argument. It’s not very complicated. I think he’s going to tell the justices look you have no business scrutinizing the exact reasons why Trump did this. We all kind of know why Trump did this. It doesn’t matter if it was explained in a one page sheet or a thousand page documents. The upshot is the same. Trump didn’t like this program so he killed it. Mm hmm. What do think the justices are going to make of that argument. Well. You know it’s going to divide along liberal and conservative lines. Right. And I do think that Chief Justice Roberts is going to be in the middle and he’s probably holds this case in his hands as he does so many I think the liberal justices are going to say Now hold on we have laws for a reason and the Administrative Procedure Act is an important if somewhat boringly named law.

S10: And it says that you don’t get to make arbitrary and capricious decisions even if you’re the executive branch. And that is a pretty low bar. But it does often succeed in blocking these executive actions that are so sloppy so poorly reasoned so detached from the text of federal law that they simply cannot survive any level of judicial scrutiny. And so that is the law that tripped up the census citizenship question right. The Supreme Court wound up deciding that this census citizenship question was justified on the basis of pretext that the administration had lied about it. And so now the doctor case revolves around the very same law. And who knows which way the chief justice will lean. I think he will favor the Trump ministrations in this case. I don’t think this is quite as blatantly sloppy as the census citizenship case. But you know Chief Justice Roberts is full of surprises.

S6: So you never know as you watch the arguments today. What are you looking for from the justices that will tell you a little bit what they’re thinking.

S10: So I’m very interested in the emotional resonance of this case among the justices. You know we can get into the technical details of the law which arbitrary and capricious but I am curious to hear if the conservative justices just sort of channel their inner Fox News hosts and rant about illegal immigration which is what Jeff Sessions did when he announced repeal or if you’re going to see some real sympathy even from Justices like Cavanaugh and Al Gore such who have tried to present themselves as kind people as somewhat empathetic people even if they don’t necessarily bring that to their judging. I’m curious to hear if they’re just going to go on and on about these aliens who’ve invaded the country or if they’re going to have some respect for DACA beneficiaries and maybe even acknowledge in their questions the very difficult position these individuals are in. The liberal justices especially Justice Sotomayor who is excellent on all matters of immigration and undocumented individuals I think they’re going to go really hard on the Trump administration sloppiness here. I think they’re going to in some ways try to be less emotional because they want to win over the chief justice who is a little bit of a robot and they’re going to try to prove to him through their questions that it doesn’t matter if you love dreamers or hate them. The point here is that the law matters and the administration didn’t follow the law.

S6: Here’s something I’m struggling to figure out with this case. The administration is arguing against an executive action here. They’re saying it was kind of capricious to implement DACA in the first place. But this administration is so into executive power and canceling DACA it just looks like a different kind of capricious executive action. How do I square this.

S10: It may be impossible to square because you know I would argue that something like the travel ban which affected so many millions of people which separated in a profound way so many families and you know the church administration infected it three times to try to find a legal version of it. And yet the top administration says oh DACA you know just enshrining this deferred action principle in an executive policy that goes way too far. You know that’s just beyond what the executive should be doing. There is a whole lot of hypocrisy there and there’s a lot of hypocrisy among Trump’s defenders who call DACA executive overreach but then defend all of the ridiculous policies that Trump has implemented to try to curb immigration in this country. So I don’t know that it can be squared because I think hypocrisy lies at the root of it. You know Trump claims he doesn’t like executive overreach when it comes to DACA. But in every other context his administration has been defined by incessant overreach.

S6: Well I’m glad you brought up the fact that the travel ban they kept trying and kept trying because none of the lower courts here have actually said the government is required to maintain Dhaka. They’ve just been ruling that the administration was sloppy here. And to me I look at that and I think no matter what happens at the Supreme Court this administration can just keep going back and doing this over again and trying to do it better. And now we have a much stronger Attorney General and Bill Barr.

S5: Yeah that’s right. Say what you will about Barr but he’s better at this job than sessions especially if you view the job as protecting Trump which Barr does even if dreamers win this case it’s going to be a temporary victory.

S10: Right. Because it means that the Trump administration is going to go back and start over and perhaps speed up the timeline. You know the original policy for rescinding DACA was on a rolling base as it was going to give people an opportunity to renew one last time it was wasn’t going gonna take effect for several years. But if Trump loses at the Supreme Court he’s probably going to be really angry and he’s probably going to lawyer up and entrust Bill Barr to do it right this time and maybe try to repeal Daka on a much quicker timeline and that would mean you know throwing dock beneficiaries under the bus in very short order. So there is no absolute victory for Doc beneficiaries in this case because everyone agrees that at the end of the day Trump can do this.

S7: The only question is whether he’s done it correctly.

S12: Mark Joseph Stern thank you so much. Thanks so much. Always a pleasure. Marches as Stern covers the Supreme Court for Slate.

S13: He’s going to be at SCOTUS today to hear this case.

S4: You can catch his coverage over at Slate dot com while you’re there make sure you read Jeremy stalls interview with a migrant who missed out on Dhaka. She’s now been separated from her American daughter for nine years.

S13: And that’s the show. What next is produced by Mary Wilson Jason de Leone Maurice Silvers and Daniela Hewitt. I’m Mary Harris. You can catch me during the day on Twitter I’m at Mary’s desk. I’ll talk to you tomorrow.