The Supreme Court’s Ominous DACA Decision

Originally published by Adam Cox and Cristina Rodriguez on June 22, 2020 for

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.

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.

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