Can President Trump put an end to legal protections for a group of undocumented immigrants who were brought to the United States years ago as children?
The U.S. Supreme Court will consider that question Tuesday – and its answer will determine the fates of hundreds of thousands of young adults across the country.
On the docket are three high-profile cases that explore whether the Trump administration violated federal law when it rescinded a program that allows certain undocumented immigrants – those who arrived in the United States before they turned 16 – to apply for temporary legal protections.
The Trump administration contends that the program – created in 2012 by the Obama administration – is illegal and that such matters of immigration policy must be made by the legislative branch. What’s more, it maintains that its decision to end the program falls under its purview and is therefore not subject to judicial review.
A ruling in favor of the Trump administration would not necessarily result in the immediate deportation of these so-called Dreamers, according to Steven Schwinn, a law professor at the University of Illinois at Chicago. But it would threaten their ability to live in the United States and would deprive them of legal authorization to work and to access certain social benefits.
That, supporters say, would be a travesty for a group praised by progressives for hard work, ambition and contributions to the economy and to society generally. More than 90 percent of Dreamers are employed and almost half are in school, according to a 2017 survey conducted by the Center for American Progress.
“Since Day One, our nation’s courageous Dreamers have faced an unrelenting assault from the Trump administration’s xenophobic, anti-immigrant agenda,” House Speaker Nancy Pelosi (D-Calif.) said in a statement last month after filing a brief in the case of Department of Homeland Security v. Regents of the University of California. That case has been consolidated with two related cases, Trump v. NAACP and McAleenan v. Vidal, which will all be heard Tuesday morning.
In June, the U.S. House passed legislation that would safeguard the program and provide a pathway to citizenship for Dreamers. But the bill is languishing in the GOP-controlled Senate, which is unlikely to act on it any time soon.
The U.S. Department of Homeland Security created the program to allow certain immigrants who arrived in the United States before age 16 to apply for temporary protection from deportation and work permits. There were roughly 661,000 active participants in the program, known as Deferred Action for Childhood Arrivals, or DACA, as of June 30.
In 2016, Trump vowed on the campaign trail to “immediately end” the program, and he made good on his promise the following year.
“Such an open-ended circumvention of immigration laws was an unconstitutional exercise of authority,” then-Attorney General Jeff Sessions said when the U.S. Department of Justice rescinded the program. The program, he continued, has contributed to “a surge of unaccompanied minors on the southern border that yielded terrible humanitarian consequences” as well as the denial of hundreds of thousands of jobs to Americans.
Legal challenges to the administration’s plan to end the program were brought in California, New York and Washington, D.C. Lower courts sided against the federal government and issued injunctions against the program’s recission.
As such, the program continues in a “zombie state,” according to Tom Jawetz, vice president of immigration policy at the Center for American Progress. Hundreds of thousands of undocumented immigrants are in limbo as they wait for final word on the program.
“The administration’s disgraceful actions undermine our nation’s core values while forcing millions of families to live in fear and uncertainty,” Pelosi said. “The Supreme Court must uphold the rulings of lower courts across the country, which have determined that the Trump administration’s cruelty in terminating DACA was illegal and must be overturned.”
A majority of the public supports the DACA program, polls show, though support is stronger among Democrats and Independents than Republicans.
The high court’s decision – expected next spring or summer – will likely inflame partisan divisions over immigration, already a hot-button issue, and could influence the outcome of the presidential contest, which will then be well underway. A ruling to uphold the program could anger Trump’s conservative base, while a ruling against it would likely energize liberals.
The last immigration case that drew this level of attention came last year, when the court considered Trump’s travel ban on several majority-Muslim countries. Justice Anthony Kennedy sided with the majority in that case, and announced his retirement soon after, triggering the contentious battle to confirm his successor, Justice Brett Kavanaugh.