By Gwyneth K. Shaw
Whatever the U.S. Supreme Court decides in three combined cases involving the Deferred Action for Childhood Arrivals (DACA) program, the ruling will have far-reaching legal, political, and practical implications. Among the consolidated cases is Department of Homeland Security v. Regents of the University of California, and renowned attorney Theodore Olson ‘65 made the argument in favor of reinstating DACA, which the Trump administration wants to rescind.
More than 700,000 young undocumented immigrants, brought to the U.S. by their parents, have been protected from deportation, and allowed to work and go to school, because of DACA. Nearly 200,000 of them live in California, according to a recent Center for American Progress report.
Berkeley Law Professor Sarah Song has studied the cultural, legal, and ethical elements that collide in the debate over immigration, in the U.S. and internationally. In her 2018 book Immigration and Democracy, she laid out a normative framework for how democratic societies can and should debate immigration policy.
Song recently took time for a Q&A about the DACA case. She describes what might happen and where the policy discussion could go after the Supreme Court weighs in.
Q: What’s at stake here from a cultural perspective?
A: From a broader cultural perspective, I think what’s at stake here is a moral question about what kind of society we want to be, and what kind of values American society stands for. DACA recipients have become a part of our communities—local, regional, and national. They have grown up in the U.S., gone to school here, and contributed to society and the economy.
Q: What are the moral claims, made by and on behalf of DACA recipients, that you discuss in your book?
A: The first is a claim about social membership: that people who live in a society, go to school and work, and raise families in a society are already socially integrated, and this grounds a strong claim for protection from deportation. I go farther in the book, and urge that it grounds a strong claim for their inclusion as citizens, as well. The second claim is the principle of reciprocity, or mutual benefit. DACA recipients contribute to society by working hard, going to schools like UC Berkeley, and they make our society better through their contributions. These young people provide economic and social benefits to Americans.
Q: How do you see the legal implications?
A: It’s a question about executive authority, the authority of the executive branch to exercise discretion in enforcing immigration laws. President Obama took executive action to establish DACA in 2012, and now President Trump is taking action to rescind it. The question is whether the Trump administration’s decision to rescind DACA is lawful, and whether the courts can review the decision.
Basically, the Trump administration is arguing that DACA’s rescission is not subject to judicial review, as to whether the decision was “arbitrary and capricious” under the Administrative Procedure Act. According to the administration, its decision to rescind a policy of nonenforcement is an action within its absolute discretion and not limited by any federal statute regulating immigration.
Q: What about the legal viability of DACA itself?
A: The Trump administration is saying that DACA is unlawful, and that the administration lacks the authority to maintain the program. Defenders of DACA say that’s incorrect, because the executive branch has broad authority to set policies and priorities and to exercise discretion in enforcing immigration law. They argue that with 12 million undocumented immigrants, DACA is one way of prioritizing enforcement of the immigration laws. It is a part of a long tradition of discretionary relief for certain people and applies to a well-defined class of young people who present a compelling case for such relief.
There was another program, Deferred Action for Parents of Americans and Lawful Permanent Residents, or DAPA, that tried to extend the logic and the benefits of DACA to the parents of people who are either citizens or permanent residents. The Fifth Circuit Court of Appeals ruled that the executive branch could not confer work authorization and other benefits on undocumented parents of U.S. citizens because it came too close to granting full legal status by executive decision. Justice Scalia passed away at the time the case was appealed to the Supreme Court, and the court split evenly on the case, so the lower court decision stood.
Now, the Trump administration is relying on that precedent striking down DAPA to try to end DACA. As is often the case, Trump has caused some confusion on where he stands. After he took office, he said DACA recipients could “rest easy” because he was going to “allow the Dreamers to stay.” He was sounding sympathetic on Twitter even as his administration fought to end the policy. I think Trump is trying to have it both ways, since there is actually strong public support for DACA. He wants to put it on the courts.
Q: What do you expect to happen during the arguments?
A: The Court has to decide not just what to do about DACA, but what question the court is trying to answer. If the justices decide to follow the DAPA precedent, which is about whether the executive branch can give benefits like work authorization to a class of undocumented immigrants, the prior 4-4 split suggests the court may split again. Some legal scholars have argued there’s no need to take that up, and instead the narrower question should be about DACA providing protection from deportation, separate from the question of what benefits they should get beyond that. That seems more likely to have a positive outcome for DACA.
Q: DACA came about largely because Congress hasn’t been able to agree on an overhaul of immigration laws. Will a Supreme Court decision force lawmakers to take this issue up, or will it have to wait until after the 2020 presidential election?
A: I’m not optimistic. Even if the Supreme Court decides to allow DACA to remain, Congress is so polarized and there’s such gridlock that I don’t think we’re anywhere near real attempts to forge comprehensive immigration reform. This is true not just in the U.S., but in other Western democratic countries where the people think we need something different, that the system’s broken, but it doesn’t translate into action on the part of political officials. There’s a mismatch between public support for immigration and the political leaders’ inability to make changes.
Q: From your perspective, is DACA a good policy?
A: I think it’s good policy, I think it’s a start. I don’t think it’s enough, obviously we need comprehensive immigration reform. But I think there would be tremendous harm if the court rules in favor of the Trump administration’s termination of DACA. And I think the harm is not just to the 700,000-plus DACA recipients and their families, which include over 250,000 US citizen children. There would be harm to the safety of our communities, through the undermining of trust between immigrant communities and the police. There would also be harm to the economy, and also harm to the kind of values that the country stands for: tolerance, reciprocity, rewarding hard work and the many contributions that immigrants make to our society.