Tomorrow the Supreme Court will hear oral arguments on the case: “DHS -vs- Regents of University of California“, also known as the DACA case: Deferred Action for Childhood Arrivals. DACA was instituted by a President Obama ‘executive action’, not an ‘executive order’.
The Obama Office of Legal Counsel (OLC) did not fully support the constitutional framework around the effort to protect a sub-set of illegal aliens; and therefore the originating presidential action was not an official ‘executive order’, a technicality that could end up as part of the argument(s). The same issue existed within DAPA (Deferred Action for Parents of Arrivals), and was ruled unconstitutional by a divided SCOTUS.
Amy Howe at SCOTUS Blog has a great encapsulation of the case and current status:
In 2012, the Obama administration established a program known as Deferred Action for Childhood Arrivals (DACA), which allows undocumented young adults who came to the United States as children to apply for protection from deportation.
Applicants who meet a variety of criteria – for example, who have graduated from high school or served in the military and do not have a serious criminal record – must pay a fee of nearly $500 in total, submit (among other things) their fingerprints and home address and undergo a background check.
In the past seven years, nearly 800,000 people have obtained protection from deportation under DACA, which permits them to work legally in this country and gives them access to other benefits like health insurance and driver’s licenses. In 2017, the Trump administration announced that it would end the DACA program; in November, the Supreme Court will hear oral argument in a challenge to that decision. (read more)
In September of 2017 President Trump released a statement outlining how the administration would work with congress on immigration legislation toward a final disposition for those who fall under the DACA construct.
Unfortunately, Pelosi and House Democrats ultimately rebuked an immigration reform package they viewed was too heavy on enforcement and too much of an impediment to their preferred open-border platform. By January 2018 the negotiations collapsed.
While the oral arguments are tomorrow, it is unlikely there will be a SCOTUS ruling on the current DACA case until sometime later in 2020 (summer). Which will likely put DACA at the center of the 2020 election.
President Trump has previously been open to affording immigration protection for those who fall under DACA as part of a package for structural immigration reform. However, it is very likely Speaker Pelosi and the DNC will rebuke any legislative effort in their continued push to politicize the “dreamers”, and trick young voters into supporting democrat candidates.
Turning to the legality of the government’s decision to end DACA, the government explains that it had several different reasons to shut the program down, all of which were entirely reasonable. First, it reiterates, it believed that the program was illegal, so that keeping it in place would be “sanctioning an ongoing violation of federal immigration law by nearly 700,000 aliens.” And not only did the government believe that DACA violates federal law, but the 5th Circuit had in fact struck down the two related policies.
Particularly in light of the program’s “legally questionable” provenance and the announcement by Texas and other states that they would challenge DACA, the government believed that the best course was to go forward with an “orderly wind-down” on its own terms rather than taking its chances defending the program in court and risking the possibility that the program could be abruptly shut down.
It was also, the government observes, “entirely sensible” for it to determine that, even if it could have continued DACA, it would be better to do so “only with congressional approval and the political legitimacy and stability that such approval entails.” After all, even then-President Barack Obama, when announcing DACA, had indicated that the program was only intended as a “temporary stopgap measure.”
Instead, the government concluded, it opted to return to the pre-DACA system of reviewing requests for protection from deportation on a case-by-case basis. “One can agree or disagree with that judgment,” the government suggests, “but it is not remotely specious.” (more)