WASHINGTON – The U.S. Supreme Court is again poised to test the bounds of Donald Trump’s presidential powers, this time in a politically charged clash over the fate of 700,000 people who were brought into the country illegally as children.
The case, set for argument Tuesday, will mark the climax of Trump’s two-year campaign to unravel former President Barack Obama’s Deferred Action for Childhood Arrivals program. DACA, as it’s known, protects those immigrants from deportation and lets them seek jobs.
The dispute is timed to be decided during the heart of next year’s presidential campaign, underscoring the stakes for the divisive subject of immigration and for the court itself.
The administration is challenging lower court rulings that blocked it from rescinding the program. Democratic-led states, universities, labor unions, Microsoft Corp. and DACA recipients are battling to keep the program alive at least through the election.
“These are people who are contributing in fundamental ways to the American economy,” said Microsoft President Brad Smith, whose company has 66 employees with DACA status. “These are people who for the most part could not be deported to another home because they’ve never known another home.”
It’s the third time in as many terms the Supreme Court has weighed a major Trump administration initiative, following rulings that upheld the president’s travel ban and blocked the use of a question about citizenship in the 2020 census.
The administration moved to rescind DACA in September 2017 in the face of a threatened challenge to the program by Republican-led states. At the time, the administration said it agreed with those states that the program went beyond Obama’s authority under the federal immigration laws.
Trump’s team has since tried to supplement that legal rationale with additional reasons based on policy grounds. In a June 2018, memo, then-Secretary of Homeland Security Kirstjen Nielsen said the administration believed a case-by-case approach would be wiser than DACA’s exemption of a broad category of people from immigration enforcement.
“It is critically important for DHS to project a message that leaves no doubt regarding the clear, consistent and transparent enforcement of the immigration laws against all classes and categories of aliens,” Nielsen wrote.
Solicitor General Noel Francisco, the administration’s top Supreme Court lawyer, said in court papers that “DHS provided multiple, independently sufficient grounds for withdrawing DACA.”
Defenders of DACA say it’s simply a broad exercise of the president’s accepted power to set priorities in deciding who should be deported. Obama created the program in 2012, bypassing Congress after legislation known as the Dream Act had stalled. The Dream Act would have created a path to legal status for young undocumented immigrants.
DACA made an estimated 1.7 million young people eligible for the program, which offers successful applicants a renewable two-year shield from deportation and the right to apply for work permits.
“It seemed to me that this was a group of people who really didn’t deserve living under fear of deportation and having the weight of the federal government on their backs,” said Janet Napolitano, who proposed the DACA program as Obama’s Homeland Security secretary. “It was also a group of young people who need the ability to work.”
Napolitano is now president of the University of California, which is among the challengers to Trump’s rescission. The university has at least 1,700 DACA recipients among its undergraduate population, she said.
More than 660,000 people had active DACA status as of June 30, and they had an average age of 25 , according to government data. A 2017 study found that 91% of DACA recipients were employed, and 45% were enrolled in school. They arrived in the U.S. at an average age of 6, and the vast majority were born in Mexico.
A ruling in the Trump administration’s favor wouldn’t necessarily mean all, or even any, of those people would be deported. Before the courts intervened, the administration was trying to wind down the program gradually, barring people from renewing their status after a specified date but not challenging their current rights.
It’s not clear that Trump is especially eager to start deporting DACA recipients. He suggested last month that his goal was to gain leverage in negotiations with lawmakers.
If the court lets DACA be rescinded, “the Republicans and Democrats will have a DEAL to let them stay in our Country,” Trump tweeted. “It would actually benefit DACA and be done the right way!”
A loss for Trump at the Supreme Court could leave room for him to try again to rescind DACA using a different explanation, though he might be hard-pressed to do so before the 2020 election.
No matter which side prevails, Congress needs to step in and provide permanent protection, said Christopher Eisgruber, the president of Princeton University, which sued the Trump administration in 2017.
“The only path that gives security to the Dreamers is a path that gives them a road to citizenship,” Eisgruber said. “And that needs to come from Congress.”
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