The Approaching Battle Over DACA

Over the past 18 years, Congress has studied plans to prevent the expulsion of hundreds of thousands of offspring of illegal immigrants who were born in the United States. On Friday, the Supreme Court decided to step in and rule on the legality of the Trump Administration’s plan to end the Deferred Action for Childhood Arrivals program. That could, if the Administration's case prevails, lead large numbers of deportations.

DACA is an Invention of the Obama Administration

Initiated by the Obama Administration in 2012, DACA assures some 800,000 young aliens that they can remain in the U.S., where most of them have lived since childhood. They are in need of some sort of protection because they are here illegally, having either entered without permission or over-stayed their visa. Many have integrated into their communities, and some have served in the U.S. military.

Without Congressional action, they have no chance of becoming U.S. citizens. The judicial branch cannot bestow citizenship, but it does have the authority to allow DACA to continue, enabling young aliens to work and study in the U.S. Their eligibility is renewable in two-year periods.

Trump Wants to Shut Down DACA

Since last September, President Trump and his staff have been trying to shut down DACA, arguing that only Congress is authorized to create such a program; not the Executive Branch. The Obama Administration had argued that the Executive Branch has the power to decide who should be deported.

Lower federal courts have blocked the Trump plan to end DACA, on the grounds that the Administration used improper procedures to end it. On the closing day of their current term, the Supreme Court Justices agreed to hear three separate appeals that have been filed by the Administration.

In each of those cases Trump's team raised the following two questions: Do the federal courts even have the authority to rule on the decision to end DACA, and if they do, should the lower courts have upheld the shutdown plan? If the Supreme Court agrees with either point, that would be the end of DACA.

In 2014, the Supreme Court upheld (in a 4-to-4 split with one vacancy) a lower court ruling nullifying an expansion of DACA planned by the Obama Administration. A coalition of states including Texas then threatened to sue to strike down DACA. Having inherited this state of affairs, the Trump Administration decided that the program was likely to be struck down as illegal and chose to end it.

The Supreme Court is Needed to Break a Stalemate

The Trump plan was announced in September with implementation to be deferred until six months later, giving Congress a chance to pass legislation keeping the program alive. However, the March shutdown date came and went without Congressional action. Meanwhile, lower courts reacted to challenges by state governments and others wanting to keep DACA intact, by blocking the plan to end it.

The Supreme Court Justices will review the three Trump administration appeals in combination, perhaps early next year, and will make a ruling in about a year from now. That would put DACA in the middle of the 2020 presidential campaign.


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