DACA and the court


On Nov. 12, an ideologically divided Supreme Court considered President Trump’s authority to cancel the Deferred Action for Childhood Arrivals (DACA) program that President Obama created in 2012 by executive order. The outcome will have great bearing on the hundreds of thousands of young people who came to the U.S. with their undocumented parents.

When the Trump administration ended the program two years ago, the only stated rationale was its unlawfulness. Only Congress could establish such an arrangement. Last year, the administration added a second reason: to send a message to undocumented immigrants “that leaves no doubt regarding the clear, consistent, and transparent enforcement of the immigration laws against all classes and categories of aliens.”

Those challenging the president’s authority to end the program came to the court in three separate cases, the lead one from California. The others were from New York and the District of Columbia. They argued that they were very patriotic, and had come to rely on the program to normalize their lives, to obtain drivers’ licenses and work permits. All three federal courts found the administration’s action was “arbitrary and capricious.”

Both Presidents Obama and Trump, they said, gave them hope, as when President Trump tweeted in 2017, “Does anybody really want to throw out good, educated, and accomplished young people who have jobs, some serving in the military?” Over the past seven years, the program has protected more than 700,000 people from deportation.

On the day the Supreme Court heard the case, however, Trump tweeted that “many of the people in DACA, no longer very young, are far from ‘angels.’ Some are very tough, hardened criminals.” This remark is demonstrably untrue. Admission into the program is rigorous. Designed as a temporary measure to protect children brought to the U.S. by their families without the necessary documents, it requires applicants to have arrived before they turned 16 and were no older than 30. They had to reside in the U.S. for the past five years, pay a steep fee, and prove they were either in school, have graduated, or have a job or served in the U.S. military. And they had to show they had no criminal record, and they must reapply every two years.

The DACA recipients claim that the administration violated a federal law, known as the Administrative Procedure Act: The law requires more than an assertion of illegality or unconstitutionality. The Trump administration must demonstrate policy reasons for its cancellation.

The government argued two points. First, the Supreme Court lacked jurisdiction to review the Trump administration cancellation because it had merely ended a prior administration’s choice not to deport certain people. Justices Samuel Alito and Neil Gorsuch appeared sympathetic to this argument.

Second, the program was illegal because it violated the separation of powers doctrine: Only Congress could enact such a program. Justice Brett Kavanaugh seemed persuaded by this argument.

Most of the discussion focused on this question, because DACA recipients had relied on the program to protect them until Congress acted. In fact, in July 2017, Senators Richard J. Durbin (D-Ill.) and Lindsay O. Graham (R-S.C.) filed the Dream Act to protect them. It would have placed them on a path to citizenship. Senator Graham said at the time, “I am hoping we can find a pathway forward with President Trump.” Graham was deeply disappointed when Trump announced that he would not sign the bill.

Most of the justices were sympathetic to the plight of the recipients, but seemed in a quandary over what they could do about it. Justice Stephen Breyer highlighted the number of individuals, industries, and military organizations that submitted legal briefs siding with the recipients: “There are 66 healthcare organizations. There are three labor unions. There are 210 educational associations. There are six military organizations. There are three homebuilders; five states plus those involved; 108, I think, municipalities and cities; 129 religious organizations; and 145 businesses.”

The recipients argued that because the program required them to identify themselves with their names, addresses, and Social Security numbers, they made themselves easier to be deported. Chief Justice John J. Roberts rejected that argument, stating that the Trump administration lacked the resources to take such a mass action. The problem, he noted, was the ability to work with a permit.

While it is always risky to try to anticipate a ruling, here are three possible outcomes. The justices could decide that it lacked jurisdiction to intervene in an executive branch policy decision. Or they could confirm the administration’s authority to end the program. 

Finally, they could send the case back to a lower court to require the administration to give more policy reasons for its action under the Administrative Procedure Act. The only stated one is to enforce immigration laws. 

Last spring, though, in denying the administration’s attempt to add a citizenship question to the 2020 Census, Chief Justice Roberts noted, “We do not hold that the agency decision here was substantively invalid. But agencies must pursue their goals reasonably. Reasoned decision-making under the Administrative Procedure Act calls for an explanation for agency action. What was provided here was more of a distraction.”

We will have to wait until June for the court to decide.


Jack Fruchtman, a seasonal Aquinnah resident, taught constitutional history for over 40 years, and most recently published “American Constitutional History: A Brief Introduction” and “The Supreme Court and Constitutional Law” (third ed.).


  1. Obama exceeded his authority by shielding Dreamers from deportation and offering them the right to work. Obama’s policy was aimed more at offering work permits, not protection from deportation. Obama’s non-enforcement policy violated the immigration laws because it offered legal work status to people who were in the country illegally. The Supreme Court will rule with Trump on this one.

    • That’s what you have to say regarding the immorality of what Trump is trying to do to DACA? You, who thinks that children caring about the fate of our earth is not a moral issue, but abortion is? DACA is indeed an issue of morality… decency, humanity, correctness, goodness, empathy… but not to fake Christians. Ignore that Trump, an immoral bum, violated his Oath of Office and committed bribery, but make noise about “Obama exceeding his authority” when it comes to DACA. The hypocrisy, lies, and immortality of Trump excuse-mongers have no bounds… and no shame about any of it.

  2. When is our “community newspaper” going to publish opinion articles on “unlawfulness” closer to home, rather than 490 miles to the south?
    Not enough “unlawfulness” around here for the learned professor to write about?

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