- The Washington Times - Thursday, June 18, 2020

The Supreme Court ruled Thursday that the Trump administration cut too many corners when it revoked the Obama-era DACA program, overturning its phaseout and leaving in place protections for hundreds of thousands of illegal immigrant “Dreamers.”

Led by Chief Justice John G. Roberts Jr., the court scolded the Trump team for ignoring the needs of illegal immigrant Dreamers who over the years have come to rely on Deferred Action for Childhood Arrivals.

Leaving the program in place means about 650,000 young adult illegal immigrants can maintain their protections against deportation, and it opens the door to more applications after a three-year hiatus. But it also leaves them with no clear path to firm legal status despite two decades of debate in Congress.

The ruling instantly elevated the Dreamers’ plight to a major issue in the presidential campaign.

All of the justices agreed that Mr. Trump had the legal authority to revoke DACA. But in a 5-4 ruling, the majority said he needs to give a better reason for revoking it and needs to take into account the needs of DACA recipients.

Failing to do so put him in violation of the Administrative Procedure Act. The court ordered the matter to be sent back to the Department of Homeland Security to better explain its decision.

“Here the agency failed to consider the conspicuous issues of whether to retain forbearance and what if anything to do about the hardship to DACA recipients,” Chief Justice Roberts wrote in the controlling opinion. “That dual failure raises doubts about whether the agency appreciated the scope of its discretion or exercised that discretion in a reasonable manner.”

Justice Clarence Thomas, writing in dissent, accused the majority of creating legal fiction to avoid a politically tough decision.

He said President Barack Obama broke the law by creating DACA in 2012 — indeed, even the chief justice didn’t say DACA itself was legal — so it made no sense to ding Mr. Trump for following the same procedures to erase it.

“To state it plainly, the Trump administration rescinded DACA the same way that the Obama administration created it: unilaterally, and through a mere memorandum,” Justice Thomas wrote. He called Chief Justice Roberts’ reasoning “mystifying.”

Mr. Trump took the ruling personally.

“Do you get the impression the Supreme Court doesn’t like me?” he said in a post on Twitter, complaining about “horrible & politically charged decisions.”

The ruling was handed down just days after the administration lost a case involving employment discrimination over sexual orientation or gender identity.

Mr. Trump gave no indication of his next steps on DACA other than to hint on Twitter that “we have to start this process all over again.”

His presumptive Democratic opponent in November, former Vice President Joseph R. Biden, warned Mr. Trump not to try to cancel DACA again or else face a political backlash.

“He will be responsible for upending the lives of hundreds of thousands of young people and bringing harm to families and communities all across the country,” said Mr. Biden, who was vice president when DACA was created.

On Capitol Hill, Democrats urged quick passage of a bill granting Dreamers full status, and the House passed such a bill last year. But it stands no chance in the Republican-led Senate.

Mr. Trump offered his own plan in early 2018, breaking with many in his party to offer a pathway to citizenship for DACA recipients, though he coupled it with border wall funding, ending the visa lottery and changing how immigrants can sponsor family members.

Democrats said his offer was not generous enough for Dreamers and too harsh on other immigrants.

But there was some sense that the Supreme Court decision could break through that gridlock. Sen. John Cornyn, a Texas Republican who has been working on the immigration issue since he arrived in the Senate in 2003, said the high court has “thrust upon us a unique moment and an opportunity.”

“In order to come up with a solution, it’s going to take buy-in from the Senate, the House and the White House,” he said. “I’m willing to work with anyone, Republican or Democrat, who’s interested in solving the problem.”

Immigrant rights groups vowed to test whether the administration will follow through on the court’s order. The Coalition for Humane Immigrant Rights in Los Angeles announced it had filed a new first-time DACA application, which would be the first since the administration announced its revocation in 2017.

The ruling produced a complicated web of opinions from the justices.

Justice Sonia Sotomayor wrote that she saw evidence of racism in Mr. Trump’s comments about immigrants and said she would have ordered lower courts to explore whether that tainted the decision to revoke DACA. The rest of the court rejected that.

Writing in dissent, Justice Samuel A. Alito Jr. said the courts have all agreed that DACA could be revoked but, thanks to their rulings, have prevented that from happening for a full presidential term.

Justice Thomas, in the leading dissent, pointed out that the “absurd” effect of the ruling is to insist that the administration carry forward a program that a majority of the court likely believes to be illegal.

He said the ruling was inviting courts to tread ever deeper into refereeing battles involving powers of Congress and the executive branch.

Chief Justice Roberts said no matter how DACA was created, Dreamers had come to rely on the promises it made, or what is known as a “reliance interest.” He said the Trump administration needed a stronger legal reasoning to cancel a program that protected livelihoods of hundreds of thousands of people.

The dissenting justices countered that even the Obama administration, in creating DACA, made clear it could be revoked at any time, so Dreamers shouldn’t be able to claim any reliance interest.

Legal battles aside, the ruling’s immediate effect of protecting Dreamers is popular among Americans.

Dreamers — those who came to the U.S. as juveniles and often have no knowledge of their countries of citizenship — have long been seen as the most sympathetic figures in the immigration debate. Most were brought by parents, with no say in the decision, and have grown up in U.S. communities.

A Pew Research Center survey taken this month found about three-quarters of the public think Dreamers deserve permanent legal status.

DACA offers a two-year stay of deportation and work permits, which entitle the holder to a Social Security number and to some taxpayer benefits.

Mr. Obama repeatedly told activists he didn’t have the power to grant such a broad deportation amnesty, but during the summer of 2012, facing reelection and worried about support among Hispanics, he reversed himself and decided he did have power after all.

Under his direction, the Homeland Security Department issued a memo announcing the program. DACA began operation on Aug. 15, 2012, and has provided protections for about 825,000 people over the years.

Of those, about 650,000 were still protected at the end of last year. Some have fallen out of status, while others have gone on to gain more permanent legal status through marriage or advance parole.

• Stephen Dinan can be reached at sdinan@washingtontimes.com.

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