On Thursday, a federal appeals court handed down a decision that, on the surface, appears to be very good news for undocumented immigrants who are permitted to stay in the country through the Obama-era Deferred Action for Childhood Arrivals (DACA) program. The United States Court of Appeals for the Ninth Circuit’s decision in Regents of the University of California v. Department of Homeland Security upholds a lower court opinion blocking the Trump administration’s decision to end DACA.
In reality, however, Regents is the harbinger of what will likely be terrible news for DACA beneficiaries. Now that a federal appeals court has ruled on this issue, it has a straight shot to the Supreme Court. And the Republican-dominated Supreme Court is likely to back Trump along party lines.
As Judge Kim McLane Wardlaw explains in her majority opinion, the Ninth Circuit’s pro-DACA decision is narrow, and it rests on a complex web of doctrines dealing with which procedural hoops a federal agency must jump through when it changes an existing policy, and when courts are able to review that decision.
The crux of Wardlaw’s reasoning begins with the Supreme Court’s declaration that “it is well-established that an agency’s action must be upheld, if at all, on the basis articulated by the agency itself.” In this case, the Department of Homeland Security based its decision to rescind DACA on its belief that DACA is unlawful — and on nothing else. Thus, if DACA is, in fact, lawful, the agency’s decision to rescind it is invalid.
The court then concludes that DACA is, indeed, lawful. As Wardlaw explains, DACA is primarily an act of non-enforcement. That is, several federal agencies are tasked with tracking down and deporting undocumented immigrants, but “the reality is (and always has been) that the executive agencies charged with immigration enforcement do not have the resources required to deport every single person present in this country without authorization.” For this reason, these agencies have to make discretionary calls about where to focus their resources and who to target.
DACA is a form of “deferred action,” a legal term for when these agencies determine that certain immigrants should not be targeted. And deferred action, as Wardlaw explains, “has been a feature of our immigration system—albeit one of executive invention—for decades; has been employed categorically on numerous occasions; and has been recognized as a practical reality by both Congress and the courts.”
According to Wardlaw, such a system isn’t just lawful, it is entirely sensible.
In a world where the government can remove only a small percentage of the undocumented noncitizens present in this country in any year, deferred action programs like DACA enable DHS to devote much-needed resources to enforcement priorities such as threats to national security, rather than blameless and economically productive young people with clean criminal records.
So that’s the case against the Trump administration, and it is worth noting that it is a very narrow case. “We do not hold that DACA could not be rescinded as an exercise of Executive Branch discretion,” Wardlaw writes. Her court merely holds that the Trump administration’s stated reason for rescinding DACA is incorrect. Were the Trump administration to offer a different reason — and it is a mystery why they have not — they almost certainly would be allowed to rescind DACA.
One consequence of the Trump administration’s odd approach to rescinding DACA, however, is that it places the legality of DACA directly before the courts. And now that the Ninth Circuit has decided this issue, the Supreme Court is very likely to take up this case.
When that happens, the outcome is practically foreordained. In 2016, the Supreme Court split 4-4 along party lines regarding the legality of a DACA-like program announced late in the Obama administration. Since then, Trump appointed two hardline conservatives to the Supreme Court, making it exceedingly likely that there are now five votes against DACA.
So the Ninth Circuit’s decision is a win for DACA beneficiaries, but it is likely to be a short-lived one.