DACA Lives for Now

College leaders and higher education groups across the country applauded the Supreme Court's ruling against the Trump administration’s attempt to end the Deferred Action for Childhood Arrivals program, but they noted that the decision Thursday was only a temporary reprieve that did not resolve the fates of thousands of young undocumented immigrants -- many of them college students -- in this country. If anything, the higher ed representatives said the court's action highlighted the need for Congress to pass legislation offering permanent protections for these immigrants, who remain vulnerable should the Trump administration, or a future administration, launch a new effort to scrap the program known as DACA.

Ted Mitchell, president of the American Council on Education, said Congress should act “in the wake of this momentous and welcome ruling” to give permanent protection to Dreamers.

“For far too long, lawmakers used the pending Supreme Court decision as an excuse for inaction,” Mitchell said in a written statement. “DACA recipients and other Dreamers, brought to our country as children and American in every way but their immigration status, have been languishing in unacceptable legal and political limbo.”

The Supreme Court ruling called the Trump administration's decision to end the program “arbitrary and capricious” under the Administrative Procedure Act and said the decision to end it must be vacated.

The Supreme Court decision returns the issue to the Department of Homeland Security and means the Trump administration cannot immediately end the DACA program, which protects hundreds of thousands of young people brought to this country as children by their parents, shielding them from deportation and providing them authorization to legally work in the U.S. Those affected by the ruling are known as Dreamers and include thousands of college students as well as recent graduates. An estimated 454,000 undocumented immigrant college students comprise roughly 2 percent of the U.S. higher education system. About half -- 216,000 -- are eligible for the DACA program.

Former President Obama established the DACA program in 2012. President Trump announced plans to end the program in September 2017, but his attempts to do so were blocked by lower courts that held that his administration did not follow proper procedures in ending the program.

Chief Justice John Roberts, a George W. Bush appointee, wrote the majority opinion, which the court’s four liberal justices signed on to in whole or in part.

“We do not decide whether DACA or its rescission are sound policies,” reads the opinion authored by Roberts. “We address only whether the agency complied with the procedural requirement that it provide a reasoned explanation for its action.”

The court found that it did not.

College leaders and higher education groups that have been actively advocating for DACA hailed the decision.

“Justice and the rule of law won the day,” Janet Napolitano, president of the University of California system, which was among the plaintiffs that challenged the Trump administration’s decision to end DACA, said in a statement. “The Supreme Court’s decision to uphold the University of California and the California attorney general’s challenge against the Trump administration’s capricious action is a victory for hundreds of thousands of young people who are making vital contributions to their families, schools, employers and the nation.”

Napolitano helped create DACA when she served as Obama’s secretary of homeland security. The University of California enrolls about 4,000 undocumented immigrants, many of whom are DACA recipients. California has an estimated 92,000 undocumented immigrant students enrolled in higher education -- more than any other state -- including 52,000 DACA-eligible individuals.

Gabriel Buelna, a trustee for the Los Angeles Community College District and chair of the DACA and Immigration Task Force, described Thursday as a "historic day for the nation, the District and our Dreamers."

“Truly a remarkable day to get the best possible news when the worst was expected. This is a day that symbolically the Liberty Bell is ringing throughout the land. Si se puede!”

College students in the DACA program who have been very vocal, and worried, about their uncertain status took to social media to heave a collective sigh of relief.

The Court’s Reasoning

In announcing the decision to end DACA in 2017, the Trump administration argued that the program represented an illegal overreach of Obama’s executive authority and therefore must be ended.

Then attorney general Jeff Sessions based his determination that DACA was illegal on a decision of the Fifth Circuit Court of Appeals blocking the implementation of a similar program, known as DAPA, which would have offered relief from deportation and extended DACA-like benefits to certain undocumented parents of U.S. citizens or permanent residents.

The Supreme Court ruled that the then acting homeland security secretary Elaine Duke “was bound by the Attorney General’s determination that DACA is illegal.” But the court said that Duke “did not appreciate the full scope of her discretion” in implementing this determination, and specifically failed to consider the distinction between granting employment-related benefits to DACA recipients and granting them protection from deportation or removal.

“The Fifth Circuit, the highest court to offer a reasoned opinion on DAPA’s legality, found that DAPA violated the [Immigration and Nationality Act] because it extended eligibility for benefits to a class of unauthorized aliens,” the opinion states. “But the defining feature of DAPA (and DACA) is DHS’s decision to defer removal, and the Fifth Circuit carefully distinguished that forbearance component from the associated benefits eligibility.”

Rather than treating benefits eligibility separately from the issue of deferring removal, as the court argued Duke had the discretion to do, the court said she “treated the Attorney General’s conclusion regarding the illegality of benefits as sufficient to rescind both benefits and forbearance, without explanation.”

The court also found that Duke failed to consider accommodations that could be made to reduce hardship to DACA recipients who stood to lose their legal right to stay in the U.S. and their legal ability to work.

While upholding that the rescission of DACA violated rules related to administrative procedures, the court rejected the claim that the decision was motivated by racial animus toward Latinos from Mexico and that it constituted a violation of the equal protection guarantee of the Fifth Amendment of the Constitution.

Justice Sonia Sotomayor, a member of the court’s liberal wing, disagreed with the court’s rejection of the Equal Protection clause claim in which she cited Trump’s statements denigrating Mexicans and undocumented immigrants.

“I would not so readily dismiss the allegation that an executive decision disproportionately harms the same racial group that the President branded as less desirable mere months earlier,” she wrote.

In a dissenting opinion, Justice Clarence Thomas, a member of the court’s conservative wing, accused the justices who voted with the majority of “an effort to avoid a politically controversial but legally correct decision.”

“DHS created DACA during the Obama administration without any statutory authorization and without going through the requisite rulemaking process,” Thomas wrote. “As a result, the program was unlawful from its inception. The majority does not even attempt to explain why a court has the authority to scrutinize an agency’s policy reasons for rescinding an unlawful program under the arbitrary and capricious microscope. The decision to countermand an unlawful agency action is clearly reasonable. So long as the agency’s determination of illegality is sound, our review should be at an end.”

Thomas wrote that the decision “creates perverse incentives, particularly for outgoing administrations. Under the auspices of today’s decision, administrations can bind their successors by unlawfully adopting significant legal changes through Executive Branch agency memoranda. Even if the agency lacked authority to effectuate the changes, the changes cannot be undone by the same agency in a successor administration unless the successor provides sufficient policy justifications to the satisfaction of this Court.”

Trump blasted the Supreme Court on Twitter. Thursday’s decision comes in the wake of a 6-to-3 Supreme Court decision on Monday that affirmed that Title VII of the Civil Rights Act of 1964 protects LGBTQ individuals from employment discrimination based on their sexual orientation or gender identity. The author of the opinion in that case, Justice Neil Gorsuch, was appointed by Trump.

“These horrible & politically charged decisions coming out of the Supreme Court are shotgun blasts into the face of people that are proud to call themselves Republicans or Conservatives,” Trump wrote. “We need more Justices or we will lose our 2nd. Amendment & everything else. Vote Trump 2020!”

"The DACA decision, while a highly political one, and seemingly not based on the law, gives the President of the United States far more power than EVER anticipated. Nevertheless, I will only act in the best interests of the United States of America!" Trump subsequently tweeted.

"As President of the United States, I am asking for a legal solution on DACA, not a political one, consistent with the rule of law. The Supreme Court is not willing to give us one, so now we have to start this process all over again."

Chad Wolf, the acting secretary of homeland security, said in a statement that DACA "was created out of thin air and implemented illegally."

"The American people deserve to have the Nation’s laws faithfully executed as written by their representatives in Congress -- not based on the arbitrary decisions of a past Administration. This ruling usurps the clear authority of the Executive Branch to end unlawful programs."

Higher Ed Praises Decision, Calls for Congressional Action

The Supreme Court’s decision on DACA bears resemblance to the court’s decision last June to reject plans by the Trump administration to add a question about immigration status to the U.S. Census. The court ruled in that case that the Trump administration’s explanation for adding the question was "incongruent with what the record reveals about the agency's priorities and decision-making process." With the deadline for printing the 2020 Census then fast approaching, the Trump administration dropped efforts to add the question.

Michael A. Olivas, professor emeritus of the University of Houston Law Center and an expert on immigration and higher education law, said that like in the Census case, the Trump administration has been given a blueprint of what it must do if it still wants to end DACA. But it can’t do so without first going through steps A, B and C.

“The administration will in all likelihood do A, B and C,” he said. “Unlike the Supreme Court Census case, which had a built-in, baked-in timeline to it because of deadlines, this one doesn’t, and so it could drag on for a long time. As we come up on the election cycle, it’s not quite clear what the timing is going to be.”

“It is a victory for the Dreamers, almost 800,000 of them, but at the end of the day all they get is extra time,” continued Olivas, the author of a new book on DACA and Dreamers. “The sword of Damocles is still hanging over them, and it’s very bad DACA did not provide a pathway for legalization or citizenship. They still don’t have that pathway, and it’s going to require congressional action and presidential support.”

Higher education groups praised the Supreme Court’s decision but also called for congressional action to protect Dreamers.

Mary Sue Coleman, president of the Association of American Universities, said in a written statement that while the association was heartened by the ruling, "DACA recipients’ fate cannot remain up to executive action. The fact that this decision was based on procedural mistakes by the Trump administration rather than Equal Protection Clause violations only underscores the importance of Congress immediately and unequivocally addressing the unjust plight of DACA recipients and other 'Dreamers' with a permanent legislative solution."

Henry R. Muñoz III, the co-founder of The DreamUS, a college access and success program for Dreamers, applauded the ruling as “a victory for the DREAMers who live, work and study here.”

“But let’s be clear -- the DACA program and the safety of DREAMers are still very much at risk,” Muñoz said in a written statement. “ President Trump has purposefully targeted these brilliant young people over and over again, and no doubt will continue to do so as he fights for re-election. We have to stop playing games with immigrants’ lives. The fight is far from over, but we are ready for it.”

Esder Chong, a DACA recipient who came to the U.S. from South Korea when she was 6 years old, just graduated with a bachelor's degree in philosophy from Rutgers University's campus in Newark, N.J., and was selected to pursue a master's degree in global affairs at Beijing's Tsinghua University through the Schwarzman Scholars program this fall.

"There are so many possibilities now that were otherwise blocked with the rescission of DACA, so I just feel a lot of gratitude, hope, relief," Chong said. "I think me and all the DACA recipients were holding our breaths for this particular moment so when that moment happened, I felt like we were letting out the breath we were holding for so long."

At the same time, Chong said she isn't breathing easy just yet.

"I think it’s important to remember that DACA is a temporary solution for a limited number of the undocumented community -- 700,000 DACA recipients out of millions of undocumented folks," she said. "As we celebrate this, it’s important to remember that this decision is just the beginning to finding a more sustainable permanent solution to immigration reform that works for all Americans, including those without DACA, without papers."