The long-running battle over the Trump administration’s bid to end the Obama-era program for young undocumented immigrants known as “Dreamers” will land before the Supreme Court on Tuesday.
And with a ruling expected in the midst of a presidential election year, the case puts the high court at the center of one of the most politically charged issues since the start of President Trump’s term.
For the administration and Dreamers alike, it all comes down to the Supreme Court, where Trump picks Brett Kavanaugh and Neil Gorsuch now sit. Federal appeals courts across the country have rejected efforts to phase out the Obama-era program known as Deferred Action for Childhood Arrivals, or DACA, but the administration has looked to the high court for support.
“The administration has basically chalked up the fact that they are going to lose a lot of these cases in the lower courts,” said Thomas Dupree, a former top Bush Justice Department official and now an appellate attorney.
“But they’re playing the long game. I think that there are those in the White House and the Justice Department who have made a calculation saying, ‘Look we can absorb all these losses in the lower courts because we are going to win the endgame when this case gets into the Supreme Court.’”
It remains to be seen how the court will rule, however, on this complicated issue — which concerns the limits of one president trying to rescind the policies of his predecessor.
Created under executive order, DACA gives some undocumented immigrants brought to the United States as children the opportunity to receive a renewable two-year period of deferred action from deportation and become eligible for a work permit.
“The reason the [Trump administration] gave was their belief that it was illegal to have such a program that gives protected status to a group of people who are not here legally,” said Paul Smith, a Georgetown Law professor who has argued cases before the Supreme Court. “They were caught between the political reality that they didn’t want to dump on the Dreamers, but they still wanted to get rid of DACA as Obama’s policy.”
An estimated 700,000 young adults currently in the DACA program could be affected, with a ruling for the administration potentially putting them at risk for deportation once again.
The Trump administration announced its plan to phase out the program in 2017, only for the federal courts to rule that it could not apply retroactively and that DACA should be restarted in full. The White House fought back on those decisions, saying the president has broad authority over immigration enforcement policy.
DACA proponents have argued that Trump’s planned termination violates federal law requiring adequate notice-and-comment periods before certain federal rules are changed, as well as other constitutional equal protection and due process guarantees.
The Supreme Court took the unusual step of taking up the cases before they had been fully heard at the lower court level. Those federal courts have issued nationwide injunctions, blocking the administration’s plans, at least for now.