By Raed Gonzalez, JD, LLM
Department of Homeland Security v. Regents of the University of California is no doubt an important win for DACA recipients, at least for now. DACA was a program created by former President Barack Obama on June 15, 2012, and implemented by then Secretary of Homeland Security Janet Napolitano. The policy has enabled individuals who came to the United States before the age of 16 to apply for “deferred action” (a form of prosecutorial discretion) and a work permit. The program has protected over 750,000 DACA recipients in the United States. On September 5, 2017, then Attorney General Jeff Sessions announced that DACA would be rescinded, prompting several litigants to challenge the rescission in the courts. Those cases have been consolidated for Supreme Court review.
The Court’s June 18 decision focused on a technical issue of whether the present administration’s attempt at abolishing the DACA program was done incorrectly. The decision basically states that when the government decided to end DACA, the way it chose to do it amounted to throwing the baby out with the bathwater, and therefore the entire matter became reviewable by the courts. The result of the review is in, and the judgment is clear: DACA stays as is for now in its entirety—forbearance as well as benefits.
And then there is the fact, says the Court, that the Department of Homeland Security (DHS) denies that in order to end the policy, it must first consider how millions of beneficiaries are relying on the DACA policy. “In the Government’s view, shared by the lead dissent, DACA recipients have no legally cognizable reliance interests.” The Supreme Court now fully disagrees with that position.
The Court states that DHS has the discretion to determine what weight to give the “reliance” interests. The majority opinion states that DHS has to decide whether or not it is important to, for example, lose economic activity in the amount of $215 billion annually if the DACA workforce is lost, and whether or not it is important for the U.S. to lose the corresponding $60 billion in federal tax revenue over the next ten years. The Court stated that DHS may determine that “other interests and policy concerns outweigh” reliance interests such as these. “Making that difficult decision was the agency’s job, but the agency failed to do it.”
Additionally, the Department of Homeland Security v. Regents of the University of California decision has a buried lead. It is the message sent to the administration by the presiding judge of the Supreme Court, Chief Justice John Roberts. The conservative justice took the lead in this case to resolve the 4-to-4 tie. He sided with the more liberal judges in interpreting a supremely technical policy issue that, viewed under the mantle of administrative discretion, could have theoretically gone the government’s way. The message is clear: the United States Supreme Court is not the Trump administration’s rubber stamp.
Does this mean DACA can never end? No. It could end if it is done the right way. In the meantime, it means that DACA should be fully reinstated, allowing even for new DACA requests. With that said, DHS will need to reopen the DACA program for new requests, consistent with the Court’s decision.
This may not happen quickly, but June 18 was still a good day for the United States justice system.
Raed Gonzalez is a nationally recognized litigation attorney with published precedential decisions with the Supreme Court of the US and the 5th Circuit Court of Appeals. For more information about Gonzalez or his Houston immigration law firm, visit gonzalezolivierillc.com.