Is DACA doomed? Supreme Court may side with Trump

By: and - November 12, 2019 2:42 pm
daca dreamers supreme court

Hundreds of protesters outside the U.S. Supreme Court building Nov. 12, 2019. (Photo: Robin Bravender)

WASHINGTON — Astrid Silva of Las Vegas was brought to the United States from Mexico when she was four years old. 

She remembers crossing the Rio Grande with her mother, but she wasn’t afraid. She thought she was going to Disneyland. Instead, she and her mother traveled to California, where her father was working at the time. 

Silva, now 31 and the founder of the immigration advocacy group Dream Big Nevada, is one of an estimated 12,280 Nevadans who stand to lose immigration protections if the U.S. Supreme Court strikes down the Obama administration’s Deferred Action for Childhood Arrivals (DACA) program. 

The program allows some immigrants brought to the United States as children to become eligible for work permits and to receive temporary permission to remain in the country. The Trump administration is now attempting to end the program, which impacts about 700,000 “Dreamers” across the country.

For Silva, DACA has offered an “added sense of stability,” she said.

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Astrid Silva, executive director of Dream Big Nevada and Dreamer from Las Vegas, joined protesters in front of the Supreme Court building in Washington Nov. 12, 2019. (Photo: Robin Bravender)

On Tuesday, Silva was among the hundreds of people who gathered in front of the Supreme Court as justices weighed the fate of the program. Some protesters chanted “Home is here!” as they marched down the streets between the court and the U.S. Capitol building.  

But inside the courtroom, the justices signaled they’re unlikely to salvage the DACA program. 

Lawyers defending DACA argued Tuesday that the Trump administration broke the law when it rescinded the program in 2017. Hundreds of protesters echoed the sentiment Tuesday with pro-immigrant messages in front of the high court. 

But the court’s conservatives seemed to disagree. During extended arguments in three consolidated cases, they seemed to endorse the legality of the administration’s decision to end the program and suggested that the question doesn’t even merit judicial scrutiny. 

“I assume that was a very considered decision,” Justice Brett Kavanaugh, President Trump’s most recent appointment to the bench, said of the decision to end it. “Now we can agree with it or disagree with the merits of it” … but “what is the shortfall?”

Even if the decision were illegal, the judicial branch couldn’t necessarily fix it, Chief Justice John Roberts said. “It’s not always the case when the government acts illegally in a way that affects other people that we go back and untangle all of the consequences of that.”

Justice Neil Gorsuch, Trump’s first appointee to the high court, struggled with the issue of “reviewability.” 

“I hear a lot of facts, sympathetic facts … and they speak to all of us,” he said. “But what’s the limiting principle?” 

Temporary protections

The DACA program was created in 2012 to allow certain immigrants who arrived to the United States before age 16 to apply for temporary protection from deportation and work permits. There were roughly 661,000 active participants in the program as of June 30.

Trump vowed on the campaign trail to “end” what he has characterized as an illegal program. His administration made good on his promise in 2017, but lower courts blocked the decision from taking effect.

In June, the U.S. House passed legislation that would safeguard the program and provide a pathway to citizenship for Dreamers. But the bill is languishing in the GOP-controlled Senate, which is unlikely to act on it any time soon.

“We hope and pray that the courts will do the right thing,” House Speaker Nancy Pelosi said at a news conference after the arguments. She pointed to the bill passed by the House more than 160 days ago, which she pledged to drop off at the office of Senate Majority Leader Mitch McConnell. 

Nevada’s delegation to the U.S. House split along party lines on that bill, with the three Democrats voting for it and the lone Republican in the delegation, Rep. Mark Amodei, voting against it. 

Rep. Steven Horsford said Tuesday that there are more than 10,000 Dreamers and DACA recipients in his district. 

“DACA recipients are Americans in every sense but their citizenship status and deserve to live their lives without the constant threat of deportation. We must keep our promise to Dreamers. Denying their legal rights or rescinding the promise made to them seven years ago at the outset of the DACA program would be immoral and wrong,” he said. 

Sen. Catherine Cortez Masto (D-Nev.) said Tuesday that she hopes the justices “do the right thing.” 

She added, “These aren’t just faces, these aren’t just names. These are individuals living in our community who just want an opportunity to succeed. They are hard working, they are working two jobs, they are getting an education, they are law abiding, they are helping their families. And we are telling them, ‘You do all of that. Oh and by the way, we’re going to deport you.’ That is outrageous.” 

On Tuesday morning, Trump tweeted that President Barack Obama had “no legal right” to create the program but said he would make a deal with Democrats to allow DACA recipients to stay if the program is overturned.

Senate Minority Leader Chuck Schumer (D-N.Y.) accused Trump of playing politics with the Dreamers who rely on the program. “The president’s relentless scapegoating of immigrants is the most un-American thing I can think of,” Schumer said. 

Justice Sonia Sotomayor, one of the court’s more liberal jurists, took issue with the administration’s attacks on the program during the arguments Tuesday. She called it legal and said she supports its efforts to defer deportation of Dreamers — more than 90 percent of whom are employed and nearly half of whom are in school, according to a 2017 survey

Such law-abiding immigrants and their families rely on the program, she said. Trump, meanwhile, has said he would protect DACA recipients but he hasn’t — an as-yet empty promise that she said must be considered when ruling on the case. “This is about our choice to destroy lives,” Sotomayor said.

But Gorsuch and others suggested that the administration has adequately considered such “reliance interests.” 

A ruling in favor of the Trump administration would not necessarily result in the immediate deportation of Dreamers, according to Steven Schwinn, a law professor at the University of Illinois at Chicago. But it would threaten their ability to live in the United States and would deprive them of legal authorization to work and to access certain social benefits.

The ruling — expected next spring or summer — will also likely inflame partisan divisions over immigration and could influence the outcome of the 2020 presidential contest. A majority of the public backs the DACA program, polls show, though support is stronger among Democrats and Independents than Republicans.

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Allison Stevens
Allison Stevens

Allison Stevens is a Washington D.C. reporter for States Newsroom, a network of state-based nonprofit news outlets that includes Nevada Current.

Robin Bravender
Robin Bravender

Robin Bravender was the States Newsroom Washington Bureau Chief from January 2019 until June 2020. She coordinated the network’s national coverage and reported on states’ congressional delegations, federal agencies, the White House and the federal courts. Prior to that, Robin was an editor and reporter at E&E News, a reporter at Politico, and a freelance producer for Reuters TV.