Tag Archives: DACA

DACA

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. Continue Reading...

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Roberts’s World

We are entering what would normally be the home stretch of the annual Supreme Court term.  And it is becoming relatively clear that most of the major opinions for this term will be coming from Chief Justice John Roberts.

As we have noted in past end-of-term posts, the U.S. Supreme Court attempts to balance the number of lead opinions that each chamber has.  This balancing occurs in two ways:  within each monthly two-week argument session and over the entire term.  For example, if there are ten cases argued during a given month, one justice will be assigned two cases and the other justices will be assigned one case each.  And a justice who gets two cases in one month will probably one get one case the next month.

By this time of the term, we usually have enough opinions issued to have a sense (not 100% certain because it is possible that a 5-4 case may flip after the first draft of the tentative majority opinion and the tentative dissent are circulated) of who probably has the case.  This year, we have almost all of the cases from October, November, and January and all of the cases from December.  While we only have about half of the cases from February (and obviously none from May), the look from the first four arguments is somewhat conclusive. Continue Reading...

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The Future of DACA

Earlier this month, the Supreme Court held oral arguments on the validity of President Trump’s “decision” to terminate the Deferred Action for Childhood Arrivals (DACA) program established under President Obama.  The program — limited to those brought here as children who meet certain criteria — assures participants that they will not be deported and gives them some legal rights.  President Trump — rather due to his opposition to immigrants from Latin America or his hatred for anything that President Obama accomplished — decided to terminate this program, thereby subjecting individuals who were brought here as children without proper documentation to deportation at any time that they are found by Immigration and Customs Enforcement Agency regardless of what they have done while living in the United States (either good or bad).  Various individual and agencies filed suits challenging this decision, and they prevailed in the lower courts.  The Supreme Court decided to hear three of these cases (consolidated into one argument).

Before going into the issues, it is important to note one complicating factor in this case.  Before the end of his administration, President Obama tried to create a companion program (DAPA) that would potentially have covered the parents of the participants in DACA.  That expansion was blocked in the trial court and by the Fifth Circuit (the appellate court that includes Texas).  The Supreme Court took that case, but — after oral argument — Justice Scalia died.  That left a 4-4 split on the DAPA case which means that the Supreme Court affirmed the Fifth Circuit without opinion as an “equally divided court.”  Because there was no opinion, there is no guidance on any of the relevant legal issues.  That absence cuts both ways in the current case.

The Trump Administration has two basic arguments.  First, they argue that DACA falls within the “discretionary enforcement” part of executive branch authority.  Stripped of legal jargon, agencies have limited resources.  As such, they have to make decisions about enforcement priorities and these decisions are generally not reviewable.  For example, a state prosecutor’s office in an urban area may decide that it lacks the resources to vigorously prosecute violent felonies and, therefore, decline to file routine misdemeanors believing that it would be a better use of state resources to let city prosecutors handle those matters in city court. Continue Reading...

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Supreme Court Term Preview — October 2019 (Part II)

As noted in the first part of this series, the highlights of the four-day October argument session are full days devoted to whether the term “sex” in Title VII includes sexual orientation (which might also lead to similar interpretations for other provisions barring discrimination in contexts other than employment) and to the board managing Puerto Rico’s financial issues.  With Veteran’s Day falling on a Monday this year, the November session will only have five argument days — the highlight of which will be DACA day.

DACA is not the only immigration issue in the November argument session.  The first case to be heard in that session in November 4 — Barton vs. Barr is also an immigration case.  That case involves the rules governing deportation.  Overly simplified, certain conduct authorize deportation.  However, an immigration judge can decide to cancel deportation under some circumstances.  One of those circumstances is that the immigrant has been a permanent resident for at least five years and has continuously resided in the United States for seven years.  However, for purposes of calculating that time period, that time stops when the immigrant commits an offense that would render them inadmissible.  The issue presented in Barton is whether a person who is not seeking admission can be rendered inadmissible.  (The paragraph governing “time stops” applies to both the provisions governing lawful permanent residents — who do not need to seek admission — and other immigrants like visa holders who do need to seek admission.  That same paragraph also stops the clock from running if the immigrant commits an offense that renders them removable — a concept that would apply to both lawful permanent residents and to visa holders.)  There is a logical argument for reading the paragraph in both ways, and this case will give a hint about how strictly this Court will read current immigration laws.

The other case on November 4 is a criminal law — Kansas v. Glover — case involving “reasonable suspicion.”  To grossly simplify matters, law enforcement can detain somebody for a brief period to investigate possible criminal activity including traffic offenses if they have “reasonable suspicion” that a crime is being committed.  A reasonable suspicion is basically objective reason(s) that lead the officer to believe that a crime might be in progress.  Here, the exact issue is whether the fact that the owner of a motor vehicle has a suspended license is a sufficient reason to justify stopping that vehicle to see if the owner is driving.  (In this case, the owner was driving, but the issue is not whether the officer was right.  Instead, the issue is whether the inference that the owner was driving is a reasonable inference for the officer to make.)  As you may have noticed, this case is the third criminal law-related case coming from Kansas.   The vast majority of the cases heard by the Supreme Court come from the federal courts.  Last year, the Supreme Court only took ten cases from state appellate courts, and — depending upon how you characterize some of the cases — only six involved criminal-law related issues.   For the Supreme Court to grant certiorari on three appeals from the same state in the same term is highly unusual and rarely happens even for larger states like Texas and California.  For a small state like Kansas, that is highly unusual.  On the other hand, Kansas has been gaining a reputation for loosely applying prior Supreme Court decisions (mostly in cases in which the Kansas Supreme Court has found that something about the state’s death penalty system violates the federal constitution), and Kansas has been involved in at least three major Supreme Court cases over the past twenty years. Continue Reading...

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