Balkinization: DACA at the Supreme Court

Balkinization: DACA at the Supreme Court



by Andrew Pincus

The current Supreme Court term is packed with “big” cases, but next week’s argument in the DACA cases promises to be one of the biggest.

It’s another confrontation over the Trump Administration’s hard line on immigration—the decision to shut down the Obama Administration’s  Deferred Action for Childhood Arrivals program that deferred deportation and provided eligibility for work authorization to approximately 700,000 undocumented young people who came to the United States as children, lived here continuously since at least 2007, obtained at least a high school education, and passed a background check.

But this dispute has a unique twist.

The Trump Administration typically claims expansive executive branch authority regarding immigration-related actions—e.g., the travel ban, the reallocation of funds to build the wall on the border with Mexico, the attacks on state and local public safety laws, and the addition of the citizenship question to the census. For DACA, however, it asserts that the program had to be ended because it was unlawful: the Administration’s basic argument is that executive branch lacked the legal authority to adopt DACA.

It’s odd for any Administration to argue for limited Executive Branch power: the typical position is that it has the power, but also the discretion to decide whether and how to exercise it. And it’s particularly surprising for the Trump Administration to take that position on an immigration issue.  What’s going on?

The DACA backstory shows that political imperatives forced the Administration to rely on the lack-of-authority argument, rather than invoking policy discretion—which then hobbled the Administration’s ability to defend its actions in court. Indeed, the Administration’s recent, eleventh-hour attempt to invoke policy discretion likely rests on the government’s recognition of the weakness of its position that DACA is unlawful.

The critical questions for the Justices are whether they will sanction administrative law arguments that allow the Administration to avoid accountability for its decision and shift the blame to “the law” and “the courts”; and whether they will require adherence to long-settled procedural rules governing agency action, or let the Administration avoid those rules in a rush to uphold its termination decision.

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