DACA's Future Appears in Doubt at Supreme Court

Author: David B. Weisenfeld, XpertHR Legal Editor

November 12, 2019

The Supreme Court heard arguments today in a case involving the Trump administration's efforts to end the Obama-era Deferred Action for Childhood Arrivals (DACA) program. DACA protects 700,000 young, undocumented immigrants living and working in the US from deportation. But that could change if the Court sides with the administration's arguments.

The Court's five conservative members appeared supportive of Solicitor General Noel Francisco's argument that the Department of Homeland Security reasonably determined it no longer wished to retain DACA based on its belief that the policy was illegal.

DACA has provided renewable, two-year work permits to undocumented immigrants. But Francisco told the Court, "DACA was always meant to be a temporary stop-gap measure that could be rescinded at any time."

He also argued that DACA actively facilitates violations of the law by providing affirmative benefits like work authorizations and Social Security benefits on a categorical basis.

However, Justice Stephen Breyer suggested there were serious problems with the government's position in the case, noting that recipients had ordered their lives in light of DACA and that 145 employers, 66 healthcare organizations and three labor unions - among many others - had filed or joined briefs in support of the program.

That's a point Theodore Olson picked up on arguing in support of the DACA recipients. "The government's termination of DACA triggered abrupt, tangible, adverse consequences and substantial disruptions in the lives of 700,000 individuals, their families, employers, communities and Armed Forces," said Olson. He argued that the administration had not provided a reasoned or rational explanation for ending the program.

Dozens of business leaders from a host of major companies had urged the Trump administration not to terminate DACA in 2017, including:

  • Apple;
  • AT&T;
  • Best Buy;
  • Facebook; and
  • Google.

But in response to questioning from Justice Brett Kavanaugh, Olson acknowledged that the president has the legal authority to rescind DACA.

And while Justice Neil Gorsuch conceded that Olson's arguments in support of the Dreamers "spoke to all of us," he suggested that it appeared the administration had taken the impact of ending DACA on employers and entire communities into account.

The Supreme Court is not expected to rule until next spring. But even if the Court permits the administration to end DACA, recipients would retain their two-year work protections until after the 2020 presidential election - ensuring that this will be a major issue in the campaign.