By Olivia Rojas
On November 5, 2018, the United States Department of Justice filed a petition for writ of certiorari before judgment from the Supreme Court of the United States asking the court to review three cases from different circuits relating to the Deferred Action for Childhood Arrivals program (“DACA”). These cases, DHS v. Regents of the University of California, Trump v. NAACP, and McAleenan v. Vidal (collectively “Consolidated Cases”), directly addressed the validity of the Trump Administration’s attempt to halt DACA, and in June of 2019, the Court granted certiorari.
On November 12, 2019, the Court heard oral arguments regarding the future of DACA. In reviewing the Consolidated Cases, the Court is asked to analyze two questions (1) whether the “phasing out” of the DACA program is eligible for judicial review in the first place and (2) whether the termination of the DACA program is legal.
In June of 2012, former Secretary of Homeland Security Janet Napolitano submitted plans for an administrative program which would allow a select group of undocumented individuals who were born outside of the United States but immigrated as juveniles, to apply for deferred action. These individuals have since been referred to as Dreamers. Deferred action refers to the ability of a federal immigration judge or an agent with the United States Citizenship and Immigration Service to postpone the deportation of an individual as an act of discretion. While deferred action does not adjudicate an individual as a “lawful” citizen, it awards that individual the status of “lawfully present” during the deferral period. Under Napolitano’s plan, individuals were able to apply for a deferral with the potential for work authorization and the option to renew if a request was granted. Unable to gain enough support for the program in Congress, then-President Barack Obama adopted the DACA plan by executive memorandum. Since its establishment, nearly 800,000 people have deferred their pending deportations.
Under the initial plan for DACA, people could apply for deferred action if: (1) they came to the United States before their 16th birthday; (2) they were 31 years old or younger; (3) they uninterruptedly resided in the United States since June 15, 2007; and (4) they were currently in school, graduated school, had a certificate of completion from a high school, had a General Educational Development (“GED”) Certificate, or were an honorably discharged veteran of the United States Coast Guard or Armed Forces. Persons convicted of a felony, a “significant misdemeanor,” or three or more other misdemeanors were ineligible. Additionally, if an applicant had “lawful status” on June 15, 2012, they were also ineligible.
Following the inauguration of President Trump, then-Attorney General Jeff Sessions wrote a letter to the Department of Homeland Security, expressing his concern over the broad reach of the program. Essentially, Sessions argued that the program lacked the necessary statutory authority, had no end date, and lacked support from Congress. Sessions argued it was an “unconstitutional exercise of authority.” Subsequently, then-Homeland Security Secretary Kjersten Nielsen issued a memorandum which sought to rescind DACA and set forth a method for “phasing out” the program in its entirety. The Administration planned to stop accepting new applications and began to only process renewals for those DACA recipients whose status expired before March 5, 2018.
Can the Court even review this matter?
In a brief submitted to the Court, the government contested that its termination of DACA is not judicially reviewable. While lower courts ruled that the termination was “arbitrary and capricious,” the Administration argued that the Court could not review this standard if the termination was a form of permissible discretion under the Administrative Procedure Act. The Administrative Procedure Act identifies the processes in which federal agencies may develop and enforce regulations. As such, the government argued that it possesses the discretion to terminate DACA.
The challengers in the Consolidated Cases argue, however, that this issue is a perfect example of what the Court can review, and one that has been reviewed in the past. Further, the challengers maintain that even if their first argument failed, the Court has the power to review the matter because the Administration argued its reasoning for termination was the illegality of DACA as a whole.
In oral argument, the Administration again argued that its termination of DACA was not reviewable because it was a discretionary decision, even though it also argued the DACA program was illegal. Justice Ruth Bader Ginsburg questioned this argument: if the Administration reasoned that it terminated DACA because the program was illegal, it would not be a matter of discretion, but a legal one, and therefore clearly within the purview of the Court. Justices Samuel Alito and Neil Gorsuch were less skeptical of this argument: where was the line between reviewable and non-reviewable decisions?
Is the termination of DACA legal?
Relying on the Fifth Circuit’s decision to strike the Deferred Action for Parents of Americans (“DAPA”) and an expanded DACA program, the Administration, in its brief, reasoned that the implementation of DACA in the first place was “highly questionable”  and “an ongoing violation of federal immigration law.” The challengers, on the other hand, argued that if terminating DACA was of incredible importance, the Administration would not have waited seven months before attempting to terminate the program. Further, they argued that anticipation of potential litigation is not sufficient enough to justify the termination of DACA and doing so would undermine nearly every agency decision to date. Finally, the challengers highlighted the public policy implications for terminating the program, including the displacement of hundreds of thousands of people who are actively working and studying in the United States.
In oral argument, the parties conceded to the fact that the Administration had the authority to terminate DACA. As a result, the Court was asked to review the method in which the Administration terminated DACA, rather than if it could terminate DACA. The argument appeared to break down along traditional conservative-liberal lines, although commentators noted that many justices appeared “torn” and it was unclear how the case would ultimately be decided.
The holding in these Consolidated
Cases is expected to be released in June 2020. While
the future of DACA remains unclear until then, various district court
injunctions prevent the complete cessation of the DACA program prior to a
decision. While the
Administration does not foreshadow a mass deportation should DACA be eliminated,
the loss of the program would immediately strip recipients and potential
applicants of their rights to work, attend school, and even drive.
Amy Howe, Argument Preview: Justices to Review Dispute over Termination of DACA, SCOTUSBlog (Nov. 5, 2019, 5:02 PM), https://www.scotusblog.com/2019/11/argument-preview-justices-to-review-dispute-over-termination-of-daca/.
 Deferred Action Basics, Nat’l Immigr. F. (Apr. 15, 2016), https://immigrationforum.org/article/deferred-action-basics/; Amy Howe, Symposium: Justices to Review Dispute Over Termination of DACA, SCOTUSBlog (Sept. 10, 2019, 3:06 PM), https://www.scotusblog.com/2019/09/symposium-justices-to-review-dispute-over-termination-of-daca/
 Deferred Action for Childhood Arrivals (DACA), Homeland Security, https://www.dhs.gov/deferred-action-childhood-arrivals-daca (last updated Sept. 23, 2019).
 What is DACA and Who Are the DREAMers, Anti-Defamation League, https://www.adl.org/education/resources/tools-and-strategies/table-talk/what-is-daca-and-who-are-the-dreamers (last updated Oct. 17, 2019).
Deferred Action Basics, supra note 3.
 Deferred Action for Childhood Arrivals (DACA), supra note 4.
 Caitlin Dickerson, What Is DACA? And How Did It End Up in the Supreme Court?, N.Y. Times (Nov. 12, 2019), https://www.nytimes.com/2019/11/12/us/daca-supreme-court.html.
 What Are the Eligibility Requirements for DACA?, CitizenPath, https://citizenpath.com/faq/daca-eligibility-requirements/.
 Lori Robertson, The Facts on DACA, FactCheck (Jan. 22, 2018), https://www.factcheck.org/2018/01/the-facts-on-daca/.
 Deferred Action for Childhood Arrivals (DACA), supra note 4.
 Dara Lind, March 5 Is Supposed to Be the DACA “deadline.” Here’s What That Means for Immigrants, Vox, https://www.vox.com/policy-and-politics/2018/2/16/17015818/daca-deadline-trump-dreamers-march-5 (last updated Mar. 5, 2018, 10:31 AM).
 Lomi Kriel, Trump’s Decision to End DACA Faces Supreme Court Scrutiny, Houston Chron. (Nov. 11, 2019), https://www.houstonchronicle.com/news/houston-texas/houston/article/Trump-s-decision-to-end-DACA-faces-Supreme-14827072.php.
 Howe, supra note 3; 5 U.S.C § 551 (2012).
 5 U.S.C. § 551.
 Howe, supra note 3.
 Amy Howe, Argument Analysis: Justices Torn, Hard to Read in Challenge to Decision to End DACA, SCOTUSBlog (Nov. 12, 2019, 2:07 PM), https://www.scotusblog.com/2019/11/argument-analysis-justices-torn-hard-to-read-in-challenge-to-decision-to-end-daca/.
 Howe, supra note 3.
 Howe, supra note 1.
 Howe, supra note 22.
 Supreme Court Grants Cert in Three DACA Cases, Nat’l Immigr. L. Ctr. (June 28, 2019), https://www.nilc.org/issues/daca/alert-supreme-court-grants-cert-in-three-daca-cases/.
 Lind, supra note 16.
 Hector Barreto, Here’s Why Trump is Right to End DACA, CNBC (Sept. 6, 2017), https://www.cnbc.com/2017/09/06/on-daca-trump-did-the-right-thing-commentary.html.
 Yanet Limon-Amado, Losing DACA Would, on Top of Everything Else, Double My College Tuition, Wash. Post (Nov. 12, 2019), https://www.washingtonpost.com/outlook/2019/11/12/losing-daca-would-top-everything-else-double-my-college-tuition/.