- The Washington Times - Sunday, November 10, 2019

A quick reality check: The Supreme Court will not be deciding this week whether illegal immigrant “Dreamers” deserve a chance at legal status in the U.S.

The justices also won’t be deciding whether President Barack Obama was right when he originally said he didn’t have the power to grant a deportation amnesty to hundreds of thousands of Dreamers, nor whether he was right later when he did so anyway, through what became known as DACA.

They likely won’t even decide whether President Trump had the power to cancel the program in 2017, when he announced a lengthy phaseout.


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Instead, the particular question before the high court on Tuesday is incredibly specific: Did Mr. Trump and his aides check all the correct procedural boxes when they announced the phaseout?

“The case is much narrower than lots of observers might think,” said Hiroshi Motomura, a law professor at the University of California, Los Angeles. “The case turns on whether this administration properly rescinded DACA as a matter of administrative law.”



That’s not to diminish what is riding on the case.

Nothing less than the ability of some 660,000 grantees of the Deferred Action for Childhood Arrivals program to live without fear of deportation, hold jobs, obtain driver’s licenses and deepen ties to American society will be determined by whatever the court rules, in a decision likely to be handed down next year.

Should the court approve Mr. Trump’s DACA phaseout, immigrants in the program have at most two years before their protected status expires, they lose their work permission and they become fair game for deportation. Analysts say the work status is more important for most because barring criminal entanglements, the vast majority face little danger of deportation anyway.

DACA recipients plan to rally Tuesday outside the Supreme Court to highlight their plight.

Inside, though, the government will be arguing about something far more arcane: the Administrative Procedure Act, a 1946 law that lays out the guidelines for how agencies can take action.

Despite common belief, DACA was not an executive order by Mr. Obama. It was a memo by then-Homeland Security Secretary Janet Napolitano, who cast it as a type of prosecutorial discretion.

She declared that Dreamers, at the time younger than 31, who had made efforts toward schooling and had relatively clean criminal records would not be deported. Since they were allowed to stay, Ms. Napolitano said, they should also get work permits.

She did not propose a notice nor seek comment from the public.

Neither, then, did the Trump administration when it phased out the program in 2017.

In an ironic twist, Ms. Napolitano, now president of the University of California system, filed a lawsuit challenging the phaseout based on the lack of notice and comment.

The Trump administration’s reason for phasing out DACA was that courts had ruled that a broader Obama program, Deferred Action for Parents of Americans, or DAPA, illegal. Given that, then-Attorney General Jeff Sessions said, the courts were bound to rule DACA broke the law.

One federal district court accepted that ruling, but several others rejected it — as have appeals courts.

Legal scholars are divided on what the high court will do.

“This case is not about whether President Obama had the power to create DACA. This case is about whether President Trump has the power to suspend it, wind it down,” said Josh Blackman, a professor at South Texas College of Law, who has filed briefs in the case.

The case comes just months after Chief Justice John G. Roberts Jr. led the court in shooting down a move by Mr. Trump to try to add a citizenship question to the 2020 census based on administrative issues.

In a 5-4 ruling, the court said the president has the power to add the question but that the Trump administration didn’t give a sufficient rationale.

Mr. Blackman doubted the DACA case will be a repeat.

“I don’t think this is going to be like the census case,” he said. “I think the chief will say, ‘We don’t need to decide this policy is legal, but the rationale is enough that we need to be deferential to the executive.’”

But Michael A. Olivas, a law professor at the University of Houston, said the administration has complicated its arguments by arguing that the phaseout is beyond the courts’ purview to review it — but at the same time claiming DACA is illegal.

“The government is trying to have it both ways here,” Mr. Olivas said. “They’re trying to say we have discretion to do it, and courts don’t have the ability to review it. On the other hand, they’re saying this can’t go on because it’s unlawful. Well, it can’t be both.”

All sides agree that Mr. Trump could have avoided the predicament had his administration checked off all the procedural boxes correctly.

All the lower-court judges who ruled against his phaseout made clear that his administration did have the power to act, but officials needed to go through the proper process, including putting out the policy for notice and comment.

If the justices do rule against Mr. Trump on those grounds, they will have effectively given him a road map for a do-over.

“At the end of the day, all this might do is give them the road map to unroll it properly,” Mr. Olivas said.

Still, that will mean months of notice and comment and decision-making, which would likely spill over beyond the election — meaning it could fall to the next president, who could decide to keep DACA in place.

“It’s entirely possible the court rules Trump can end it, and then Elizabeth Warren just resurrects it in six months,” Mr. Blackman said.

Yet if the justices do rule against Mr. Trump, that decision is likely to be quickly used against Mr. Obama’s original DACA because he didn’t go through notice and comment to create the program in 2012.

Mr. Blackman said the court could rule more broadly, calling into question prosecutorial discretion in immigration policy on a broader scale. If DACA is illegal, then so may other grants of deferred action.

But Mr. Blackman also wondered whether some of the court’s liberal-leaning justices might join with Republican appointees in a more narrow 7-2 ruling that Mr. Trump has the power to rescind DACA, thus avoiding a broader ruling.

Mr. Trump says he wants to strike a deal that would grant full legal rights to Dreamers. He even wrote such a plan in early 2018, coupled with money for his border wall and limits to the chain of family migration.

But Democrats rejected that bargain, and his plan went nowhere.

Now he says his hands are tied, and he is waiting for the court to rule. He figures that when his phaseout is upheld, it will create the urgency to bring Democrats to the table to deal.

Mr. Olivas said the president is playing a game.

“The president said ‘We’ve got to shoot this down so that Congress can do its job.’ But what he doesn’t say is the House has already done its job. They’ve passed the Dream Act,” he said. “You can’t take him at his word.”

The House legislation grants a far broader legalization than Mr. Trump has signaled he is willing to agree to, and nothing on immigration is likely to go anywhere in the Senate, where Republicans are in control, until the president gives a green light.

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