SCOTUS will soon rule on DACA in some way (photo: @afsc_org)
Scores of facebook messages and emails fill my inbox each day from immigrant youth protected under the Deferred Action for Childhood Arrivals (DACA) program — the Obama-era initiative that provided work authorization and protection against deportation for undocumented immigrants brought to the country as children.
They ask the same question: what will the U.S. Supreme Court decide on DACA.
Any day now, the nine justices will answer this question that will decide the fate of 650,000 young people shielded under the program, with an estimated 30,000 in New York City. Before we turn to the potential outcomes, however, let’s first lay out what the Court is actually ruling on.
The Court is focusing on two questions in Trump v. Regents of the University of California et al. (the DACA case): whether the Court has authority to review President Trump’s decision to end DACA, and, if so, whether he followed proper procedures in terminating DACA.
The legal path the Court takes to reach its conclusion will be as important as what it ultimately concludes. Every footnote, word, and punctuation will be critical. There is, however, legal guidance that projects three potential outcomes:
SCOTUS: We don’t have authority over Trump’s decision to terminate DACA.
This means that a President has almost full control over DACA. The worst, and unlikely, scenario here would see the United States Citizenship and Immigration Services (USCIS) dismantling the program by immediately cancelling existing work permits and invalidating pending renewals.
Depending on any arrests or criminal record, Immigration Customs and Enforcement could detain and begin deportation proceedings against the person who is no longer protected by DACA.
Control over DACA could also mean that President Trump would use it as leverage for legislative bargaining. He would likely direct USCIS to continue work permits and deportation relief until he bargains with Congress for a deal, e.g. border wall in exchange for some form of legal status for Dreamers. Anything is possible in an election year.
Another scenario under this decision would also allow a potential Biden administration to reinstate DACA — maybe even create a broader DACA program that would allow international travel and facilitate a path to citizenship.
SCOTUS: We have authority and Trump’s decision to terminate DACA is unlawful.
Under this better scenario, the Administration would need to restart the entire program. Depending on what precisely the Court considers the “lawful way,” Trump could then correctly proceed — like following the steps of the Federal Administrative Procedure Act — to end the program.
According to the Government Accountability Office, the average time a federal agency takes to change agency rules is about four years. In the meantime, USCIS could allow renewals, new applications, and even foreign travel.
If the ruling is that the President lawfully ended the program, then the Court will revert discretion to the President on how and when it can end the program. The Court could place restrictions like allowing work permits to continue until they expire or at another stated expiration date (e.g. end of the national state of emergency due to COVID-19).
DACA is itself unlawful
Finally, if the Court concludes that DACA itself is unlawful, then the program will be terminated without the President taking further steps. Once again the Court could indicate how and when the program will be rolled back.
Living at the fault line of immigration policy has filled the lives of thousands of immigrant youth with uncertainty. I know how that feels. Still, having come out of the shadows, I know that Dreamers will not go back.
Their home is here. And they are here to stay.
Cesar Vargas is New York's first undocumented attorney and a national advocate for immigration reform. On Twitter @Dreamer_Esq.