On Thursday, the Supreme Court issued its decision in the Deferred Action on Childhood Arrivals (DACA) case.  There were four basic issues in this case, and the Supreme Court addressed three of them directly.  There was some language that indirectly discussed the fourth issue, but no ultimate decision.   There were three basic groups of votes — two groups of four and a group of one.  As expected, the opinion was written by the Chief Justice.

By way of background, DACA was an Obama-administration program which allowed some individuals who had been brought here illegally as children to apply for deferral of removal for a set period.   One of the benefits of participating in this program was that these immigrants would also gain the right to legally work in the U.S.  Before the end of the Obama Administration, an equivalent program was established for parents (DAPA), but the Republicans managed to get a federal district court in Texas and the Fifth Circuit to block that program, and the Trump Administration withdrew the program.  Part of the complaints had to deal with the work authorization, and the Trump Department of Justice believed that DACA had the same flaw.  As a result, the Trump Department of Homeland Security announced the end of DACA with a wind-down period established (no new application and a limited period in which participants could renew their deferrals).  Cases were then filed challenging this decision under the Administrative Procedure Act (which governs the process of making administrative decisions) and also alleging other flaws in the decision including claims that the decision was motivated by an intent to discriminate against Latinx.

The first issue was a jurisdictional threshold question — was the decision on DACA reviewable under the Administrative Procedure Act.  The Supreme Court rejected the argument that discretionary policies are not reviewable.  While there is a discretionary exception, the Supreme Court found that — in most circumstances — that exception is limited to discretion exercised in an individual case rather than the discretionary decision to establish or end a program.  The Supreme Court found that, while the result of DACA might be individual decisions in individual cases (which would otherwise be discretionary under immigration law), the establishment of a program creating a procedure to seek those individual decisions was subject to review under the APA.  This part of the decision may prove to be big going forward, but it will apply to both executive decisions that are conservative and executive decisions that are progressive.

The second issue is whether the decision to abolish DACA complied with the Administrative Procedure Act.  Part of the argument on this issue involved the related issue of whether DACA itself was authorized by the relevant immigration laws.    The Supreme Court did not resolve the issue of whether DACA itself was legal.  Instead, the 5-4 majority noted that Homeland Security was bound by the memorandum of the Attorney General on this issue.  However, that memorandum only went to the “work authorization” part of DACA.  As such, reliance on that memorandum was not a valid reason to cancel the deferral part of the program.

It is important to note that in rejecting this reason, the Supreme Court refused to consider additional reasons given by the Department of Homeland Security while the case was pending.  The Supreme Court held that it was only reviewing the initial decision to cancel.  If the Department wants to consider these additional reasons, it can do so now that the issue of continuing DACA is back with the Department.

Finally, by an 8-1 vote, the Supreme Court rejected the discrimination claim.  As with the decision on the travel ban, the majority found that political speeches by Trump were not enough to prove that the government officials who made this decision acted with the intent to discriminate against certain groups or nationality.

The ultimate effect of this decision was to simply restore things to where they were in 2017.  The Administration still has the power to cancel DACA.  It just needs to do so after an appropriate consideration of the program and base it on a valid reason.  Whether the Trump Administration will do so before the election remains to be seen, but it looks like Trump intends to try.  As such, the future of DACA (and immigration in general) will likely be part of the fall campaign.