Immigration: what happens to a Dreamer deferred?

Michael Goldhaber, IBA US Correspondent

The US Supreme Court is preparing to rule on President Trump’s controversial travel ban. At the same time, the lower courts are grappling with the President’s decision of autumn 2017 to end the protected status enjoyed by about 700,000 so-called 'Dreamers' – immigrants who came to America illegally as children, but then stayed out of trouble and pursued an education.

On 15 May, the Ninth Circuit Court of Appeals heard arguments over the Obama programme known formally as Deferred Action for Childhood Arrivals, or DACA. Though Congress and the President each voice sympathy for the youth in legal limbo, the inability to compromise on overall immigration policy has left the Dreamers’ fate, at least for now, in the hands of several judges. Five courts in five circuits have wrestled with DACA over the past five months.

In January, in the first of four legal challenges to DACA rescission, a San Francisco federal court ordered the President to extend the legal status of Dreamers who have already qualified for DACA – allowing them to renew their work permits and avoid deportation. A Brooklyn federal judge in February issued a similar injunction, pending appeal to the Second Circuit. But the San Francisco case, argued this week in the Ninth Circuit, is the most advanced, and likeliest to reach the Supreme Court. ‘We have a real story to tell,’ says Gibson Dunn & Crutcher’s Ethan Dettmer, who represents the Dreamer plaintiffs in California. ‘Lives and careers and dignity are hanging in the balance.’

Lives and careers and dignity are hanging in the balance

Ethan Dettmer, lawyer representing Dreamer plaintiffs in California
Gibson Dunn & Crutcher, San Fransisco

DACA has not always fared so well in court. The Dreamers suffered an obvious setback in March, when a Maryland federal judge sustained DACA’s rescission, pending appeal to the Fourth Circuit. They suffered a subtler blow in late April, when a DC federal judge gave the Trump administration three months to clarify why it would kill DACA. Josh Blackman of South Texas College of Law calls the DC order a ‘blessing in disguise’ for President Trump. With a stronger rationale, he predicts that ‘DACA rescission 2.0’ will stand up in court.

Finally, in early May, seven Republican states led by Texas brought a late challenge to DACA itself (as opposed to DACA’s rescission). Filing in a US courthouse near the Mexican border, they succeeded in drawing the same judge in Brownsville, wo killed the larger pre-DACA program known as DAPA, or Deferred Action for Parents of Americans in 2014. The new suit raises the distinct possibility of dueling federal injunctions, with a Texas judge ordering that DACA be dissolved, and a California judge ordering that it be extended.

DACA protests

Protests in Washington DC against the phasing-out of DACA, 2017

Ilya Shapiro of the Cato Institute argues that an anti-DACA order resting on constitutional grounds would obviously prevail, because the pro-DACA orders merely rest on administrative grounds.

But Luis Cortes, who serves as co-counsel to the California Dreamers, notes that the Ninth Circuit could affirm on constitutional grounds. To Cortes, the key question is what ‘irreparable harm’ would be inflicted by either rescinding DACA, or extending it.

He argues that Dreamers are infinitely more at risk than are the states who wish to avoid DACA’s cost, because the programme has already been implemented, and 700,000 people are planning their lives around it.

To libertarians, DACA is self-evidently unconstitutional, however admirable its goals, because the President lacks the power to create new benefits and programmes without Congress. ‘When DACA came out, Obama poisoned the well for legislative solutions, and exposed these young people to uncertainty,’ says Shapiro, who himself immigrated to America from Russia by way of Canada. ‘It only made sense if he thought the Republicans would never win the presidency again. You live by the executive order; you die by the executive order.’

President Obama maintained that taking it easy on Dreamers fell within his discretion. But that only invites a simpler argument for DACA’s rescission: if a President has the discretion to set enforcement priorities, they have the discretion to reset enforcement priorities.

Cortes – himself a Dreamer (see related link) – answers that discretion must be bounded by the Constitution. Voiding DACA violated due process, he says, because the government had assured Dreamers that they could sign up for the programme without fear that it would ease their deportation. Revoking DACA violated equal protection because 93 per cent of its beneficiaries are Latino, he argues – and from the moment Donald Trump declared his candidacy, he’s shown an obsessive anti-Latino animus. Maybe so, but even sympathetic observers say it’s easier to draw the line from the President’s anti-Muslim rhetoric to the travel ban, than from his anti-Latino rhetoric to his stance on Dreamers, whom he actually exhorts Congress to protect. And DACA’s foes say it technically made no promises.

Dreamers draw support from large majorities in opinion polls. Unfortunately for them, a better indicator of the Supreme Court’s position on DACA is the DAPA case in South Texas. Four million immigrants with US-born children lost the chance to be legalised when the Supreme Court – working shorthanded due to the Senate’s refusal to seat a new justice in 2016 – let the Fifth Circuit kill DAPA by deadlocking 4-4. Although Cortes sees hope in the newly-appointed Justice Neil Gorsuch’s voting record on immigration, Shapiro says killing DACA will be straightforward for a believer in separation of powers and strict statutory interpretation.

If Shapiro’s right, then the justices might ultimately bless DACA’s death with a ritual apology, as the Maryland judge did in March: ‘This court does not like the outcome of this case, but it is constrained by its constitutionally limited role to the result it has reached. Hopefully the Congress and the President will finally get their job done.’

Of course, Congress and the President may sit on their hands and blame the courts. ‘It’s a political dynamic that Madison didn’t anticipate,’ says Shapiro. ‘Instead of each branch being jealous of its own power, each branch is passing the buck.’