The federal court decision that temporarily saved DACA could lead to a much greater loss

This could backfire, badly.

CREDIT: Bilgin S. Sasmaz/Anadolu Agency/Getty Images
CREDIT: Bilgin S. Sasmaz/Anadolu Agency/Getty Images

Tuesday evening, a federal district judge in California handed down a surprisingly broad opinion reinstating much of the Deferred Action for Childhood Arrivals (DACA) program, which the Trump administration planned to wind down beginning this year. DACA has allowed hundreds of thousands of undocumented immigrants who came to the United States as children to remain in the country and find regular employment, and Tuesday’s decision will provide temporary relief to those people.

Yet while Judge William Alsup’s opinion deals a blow to the Trump administration’s immediate plans to end DACA, the case faces a difficult road ahead on appeal. Indeed, by placing the legality of DACA itself at the center of this case, Alsup could inadvertently leave many immigrants worse off.

The case is Regents of University of California v. United States Department of Homeland Security. Judge Alsup is a Clinton appointee.

Alsup acknowledges early in the opinion that “a new administration is entitled to replace old policies with new policies so long as they comply with the law.” The Trump administration has broad discretion to cancel policies implemented by prior presidents, so long as those policies are not mandated by law. So the various parties seeking to preserve DACA had an uphill climb to convince the courts that Trump cannot simply cancel the program.


Judge Alsup largely relies on a line of Supreme Court decisions establishing that, when a federal agency alters existing policy, that “agency’s action must be upheld, if at all, on the basis articulated by the agency itself.”

The Trump administration’s stated reason for winding down DACA is that Attorney General Jeff Sessions determined that the program is not permitted by law. Meanwhile, Donald Trump himself suggested in a tweet that Congress should “legalize DACA,” and he’s claimed that his administration is “not after” DACA beneficiaries. If only DACA were not illegal, the administration appears to be saying, then Trump would have chosen to continue the program.

Alsup spends much of his opinion arguing — correctly — that DACA is not illegal. The method DACA uses to permit certain undocumented immigrants to remain in the country, a method known as “deferred action,” has been explicitly endorsed by Congress and embraced by several past presidents. Longstanding regulations permit “recipients of deferred action to apply for work authorization if they could demonstrate an ‘economic necessity for employment.’” As Alsup notes, if each component of the DACA program “is within the authority of the agency, then how can combining them in one program be outside its authority, so long as the agency vets each applicant and exercises its discretion on a case-by-case basis?”

Yet, while Alsup presents a convincing case that DACA is legal, he is not the final word on this subject. In 2016, when the Supreme Court had only eight members, the justices split 4-4 along party lines on the legality of DAPA, a similar program created by the Obama administration, as well as an expansion of the existing DACA program. Since then, Trump installed Neil Gorsuch into the Supreme Court’s ninth seat, and Gorsuch’s record so far suggests that he is a hardline conservative unlikely to break with his fellow partisans.

The danger of Judge Alsup’s opinion is that, by making the legality of the Trump administration’s plan to wind down DACA contingent upon the legality of DACA itself, Alsup potentially sets the Supreme Court up to hand down a 5-4 decision establishing that DACA is illegal. And once that happens, future presidents will have a tough time creating DACA-like programs to benefit undocumented immigrants.


In fairness, this is not a foregone conclusion. Alsup does argue that some — although not all — of the legal arguments against DAPA do not apply to DACA. And it is possible that a member of the Supreme Court’s conservative bloc could get cold feet, or perhaps will be less inspired to rein in executive power now that a Democrat no longer occupies the White House.

But the smart money says that, if the legality of DACA reaches the Supreme Court, the Court will hand down very bad news for immigrants. That means that, while Judge Alsup’s opinion is a temporary victory for DACA beneficiaries, it could eventually lead to a much greater loss.