The Supreme Court Thursday threw a temporary lifeline to young immigrants who have been swimming against the current of immigration restrictionist policies issued by President Donald Trump over the past three and a half years.
But big questions remain. Will Trump again try to end the program that is popular with an overwhelming majority of Americans just months before he is up for re-election? And will Congress ever provide a pathway to legal status for these immigrants?
There’s also a pending legal challenge in Texas that could yet play a role in deciding the fate of the Deferred Action for Childhood Arrivals, or DACA program, and questions about whether the program should immediately resume because of the Supreme Court’s ruling.
The court ruled Thursday that the Deferred Action for Childhood Arrivals program, which shields some unauthorized immigrants brought to the U.S. as children from deportation and grants them renewable two-year work permits, can remain in place because the way the Trump administration tried to end it in September 2017 was unlawful.
Chief Justice John Roberts, in writing the majority opinion, pointed to the fact that the court was not weighing in on whether DACA itself is legal or not.
Instead, the court focused on how the Trump administration violated the Administrative Procedures Act, which governs the rulemaking process, and that its reasoning for ending the program was not sufficient.
“The appropriate recourse is therefore to remand to (Department of Homeland Security) so that it may consider the problem anew,” Roberts wrote.
The ruling essentially throws the question back at Trump and leaves the door open for the administration to again try dismantling DACA — this time by following the rules.
“The Trump administration could go back and author a new memorandum addressing the issues the court says weren’t addressed, but whether or not there’s time for that between now and November is another question,” said Chad Ruback, an appellate attorney based in Dallas.
Trump took to Twitter on Thursday to express frustration and anger with how the Supreme Court ruled and hinted that he may have another go at the Obama-era program.
“As President of the United States, I am asking for a legal solution on DACA, not a political one, consistent with the rule of law. The Supreme Court is not willing to give us one, so now we have to start this process all over again,” Trump tweeted.
But taking another run at DACA could prove costly for the president as the election looms. About 74% of Americans support granting legal status to young immigrants brought to the U.S. as children, often referred to as “dreamers,” according to a poll conducted this month by the Pew Research Center.
It’s also unclear if the federal government will resume accepting new DACA applications.
Since September 2017, when Trump moved to end DACA, only those who’ve already received approval could continue applying for renewals every two years. They’ve paid $495 to U.S. Citizenship and Immigration Services, or USCIS, each time for a new work authorization permit.
The immigration agency declined comment but instead referred to a statement from Chad Wolf, the acting director of the Department of Homeland Security, which oversees the immigration agencies. But Wolf’s statement said nothing about renewals or new applications.
“The DACA program was created out of thin air and implemented illegally,” Wolf said. “This ruling usurps the clear authority of the Executive Branch to end unlawful programs.”
But Joseph Sellers, a civil rights attorney who represented the NAACP in one of the DACA lawsuits decided by the court Thursday, said that the Supreme Court’s ruling makes clear that the program should be fully reinstated.
“The rescission is void and restores the program to where it was before they tried to end it,” Sellers said. “There’s no legal reason now why the administration shouldn’t be accepting new applications.”
The Migration Policy Institute estimates that since the Trump administration moved to end DACA, 66,000 young unauthorized immigrants have aged into being eligible for DACA. Applicants must be at least 15 years old to apply.
Texas will likely play a strong role as DACA litigation moves ahead. In December 2014, it was Texas’ then-attorney general Greg Abbott, now the governor, who first filed suit against an expanded version of DACA and another Obama-era initiative Deferred Action for Parents of Americans. Eventually in 2018, Texas Attorney General Ken Paxton challenged the original 2012 DACA.
The Mexican American Legal and Defense Educational Fund, or MALDEF, represented some of the young DACA recipients in the litigation, arguing they would have been inadequately represented by the Trump administration.
MALDEF president and general counsel Thomas Saenz cast doubts on whether Paxton would continue its litigation against the original DACA of 2012. “If he were a better lawyer, he would realize this (Supreme Court ruling) is not a good development for their case.”
But in a tweet, Paxton indicated that he was ready to revisit the litigation.
“We are disappointed with today’s SCOTUS decision, but it does not resolve the underlying issue that President Obama’s original executive order exceeded his constitutional authority,” Paxton said in a prepared statement. “We look forward to continuing litigating that issue in our case now pending in the Southern District of Texas.”
In a carefully parsed statement, the American Immigration Lawyers Association, noted that more legal brawls are likely.
“Despite this great news, and our exhilaration about the decision, the court has made clear that the president has both the power to continue the program and the power to terminate if he follows the correct legal process,” the statement read. “For the sake of not only Dreamers but our nation, this legal limbo must end.”
The lawyers group called for Congress to come up with a bipartisan solution.
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