As we noted earlier, among the eight immigration cases pending at the Supreme Court is the question of whether the current administration’s attempt to end DACA was legally proper. The Supreme Court heard oral argument on November 12, 2019.
The case focuses on two questions: (1) Are the courts even allowed to review the government’s decision to end DACA? (2) Did the government violate the law in the way that it went about ending DACA?
Are courts able to review the decision to end DACA?
The administration’s first argument is that the courts may not review the decision to end DACA, because that decision was within the federal government’s discretion, and so may not be second-guessed.
One weakness of the government’s argument is that the original justification that the administration provided for ending DACA is that the program was illegal, and so the administration had no choice but to end the illegal program. Justice Ginsburg pointed out the problem: on the one hand, the government says that it had the discretion to end the program, while on the other hand, the government says it had no discretion because the program was illegal.
Did the government attempt to end DACA in a lawful way?
Both sides agree that the current administration could end DACA if it chose to do so in a legally proper way – by providing sufficient reasoning behind the decision.
The government’s original justification for ending DACA was a brief memo that stated that the program was illegal, and so it must be ended. Those supporting the DACA program argue that the government’s original reasons were not sufficient to justify the decision to end the program.
The government later provided an additional memo that attempted to more fully address all of the factors involved, including the reliance of about 700,000 persons who have DACA. One question that the justices must sort out is, if the DACA program is legal (despite the current administration’s argument that it isn’t), then is the administration’s justification for ending DACA sufficient?
We expect the Supreme Court to issue a decision any time between now and the end of June 2020.