Last Thursday, the Supreme Court rebuffed the Trump administration’s attempt to unwind DACA–President Barack Obama’s signature immigration initiative that insulates nearly 700,000 young immigrants from deportation while providing them with workpapers. The Court’s decision was initially touted widely as a major victory for the Dreamers and a constraint on an irresponsible executive. For the Dreamers themselves, this celebration makes sense, especially given that this litigation has been a vital part of their struggle for recognition. But the decision is as ominous as it is encouraging.
Why so ominous? The Court provides a roadmap for the administration to unwind DACA once and for all. Worse, the Court casts doubt on a key feature of the program—the part that gave Dreamers work papers—in a way that could unnecessarily hurt immigrants and thwart rational immigration policy moving forward. Indeed, it might even hobble a future Biden administration’s ability to pursue a humanitarian path going forward.
Timing May Be Everything
The Court established that the president has the power to rescind DACA. That much is clear. He simply has to do so in a procedurally correct fashion. In sending the case back to the Department of Homeland Security, the Court held that the reasons DHS gave to justify DACA’s rescission before the Supreme Court were not the reasons on which the agency originally relied—a basic violation of administrative law. The Court did not find, however, that DACA was legally required. Even the Obama administration emphasized that it could have unwound DACA if it had wanted to do so.
The delay caused by this remand is likely the principal benefit of the protracted litigation over DACA’s rescission. The Trump administration may very well run out of time to redo its policy process from scratch before November, leaving the Dreamers’ fate to the presidential election. The litigation has made the Dreamers’ plight highly visible, and DACA itself has helped make their unlawful status look arbitrary and unjust to a wide range of the public. But neither the Court’s judgment nor DACA provide the Dreamers with any long-term security.
Commentators have also made much of the Court’s conclusion that the agency must weigh the reliance interests engendered by DACA before ending the program. The Court presents those interests as serious and weighty, and the symbolic effects of these passages in the opinion are meaningful—they recognize who the Dreamers are and their place in American society. But as the Court makes clear, the reliance interests do not by themselves have legal significance in the sense of predicting or requiring an outcome. It remains the “agency’s job” to weigh those interests against countervailing considerations and to come to a conclusion.
As a matter of promoting reasoned decision-making and therefore good governance, it is certainly useful for courts to direct agencies to take reliance interests into account without prescribing the weights they must be assigned. If DHS opts to give rescission another try, it will have to come up with a reason that the reliance interests matter less than its policy goals, whatever those ultimately happen to be. This requirement produces greater political accountability for the consequences of agency action—responsibility that DHS arguably has been trying to avoid by hiding behind claims about DACA’s illegality. Certainly one of the effects of DACA’s persistence over the last eight years has been to draw attention to the cruelties of trading the Dreamers’ fate off against the supposed law-and-order benefits of maintaining the threat of deportation. But the Court’s requirement that DHS consider those tradeoffs is not a high hurdle for the agency to clear.
Stripping the Executive of Power to Issue Work Permits
What’s more, the Court’s decision calls into question one of DACA’s key pillars and a crucial tool that executive branch officials have used for decades to ameliorate the plight of many unauthorized noncitizens: the power to authorize them to work while their removal has been put on hold. This makes the decision extremely troubling for those who care about the humanitarian costs of the enormous shadow system made up of millions of unauthorized immigrants that has existed in the United States for decades.
To understand why limiting the president’s power to extend work authorization would present a profound problem, it is necessary to understand where our shadow system comes from in the first place. As we document in our forthcoming book, The President and Immigration Law, the shadow system long predates the hyper-polarized battles of the Obama and Trump years. It has emerged from the confluence of two twentieth century developments. The first was the creation and dramatic expansion of America’s deportation state. The second was the explosion of illegal immigration in the final third of the century. As a result of these twin forces, immigration policy today is defined by a single arresting fact: nearly half of all non-citizens in this country are deportable.
In this world, immigration policy is defined less by the dictates of Congress and much more by the discretion that the president and other executive branch officials have to decide who should actually be deported from this pool of now eleven million deportable noncitizens. As the last three and a half years have made clear, this discretion can be weaponized, permitting the president to strike fear in the hearts of many immigrants with the threat of enforcement. Yet the discretion also empowers the president to temper some of the shadow system’s harsh realities.
For decades, presidents and their advisors have understood that many unauthorized or otherwise deportable immigrants will not and often should not be deported, and officials frequently have made promises to refrain from enforcing the law against them. In so doing, the Executive has often also extended legal permission to work. As the Court acknowledged last week, DACA bundles together these two important protections. Acting DHS Secretary Elaine Duke terminated both parts of the program in September 2017 on the ground that the entire program was unlawful. But the Court concluded that she should have considered each dimension of DACA as a separate policy option.
In taking this approach, the Court suggests that the government may have the power to decline deportation, but may not have the power to provide unauthorized immigrants with work papers. This echoes a claim heard throughout all of the litigation over President Obama’s policies, including in a Fifth Circuit decision and a prior Supreme Court argument: that only the legislature has the authority to provide immigrants with benefits like work authorization. If DACA persists into the next administration, its opponents will assuredly raise this very point in challenging its legality.
The Court’s decision thus offers up a stark vision in which the shadow system continues, but the president lacks the power to ameliorate one of its harshest consequences with tools once deployed to bring some humanity to the situation. Denying Dreamers the opportunity to work lawfully would serve only to push them deeper into the shadows. This possibility underscores why even if Joe Biden becomes president, this inequitable situation won’t necessarily change. It would be beyond the grasp of the White House. Instead, the only solution will be to overhaul immigration law in order to shrink the shadow system dramatically.
Such reform will require action by Congress on issues that have stymied reformers for over a generation. But this remains the only true way to curb the dangers of the president’s power over immigration law, regardless of party.