This post was updated May 29 at 11:38 a.m.
UCLA law professors said they are uncertain about how the Supreme Court will rule on the Deferred Action for Childhood Arrivals program, but some said they think its future is bleak.
The Supreme Court heard arguments for the University of California’s case against the repeal of DACA in November, with a decision expected to be handed down no later than June.
DACA, which was created under former President Barack Obama’s administration, defers deportation for undocumented immigrants who arrived in the United States as children and allows them to obtain work permits and college degrees. It was rescinded in June 2017 by the Department of Homeland Security under President Donald Trump’s administration.
The phaseout of DACA was put on hold so Congress could make decisions about legislation. However, since Congress failed to act by March 2018, the issue will be decided by the Supreme Court.
Hiroshi Motomura, a law professor at UCLA, said in order to decide the case, the Supreme Court will be looking into the reasoning that the government gave for rescinding DACA.
“The legal issue is whether or not the government went about the rescission in a legally proper way,” Motomura said. “And I think that people challenging decisions (argue that) the government did not go about it in the proper way. The only reason (the government) gave when they rescinded DACA was that DACA was illegal.”
Nina Rabin, director of the Immigrant Family Legal Clinic at UCLA School of Law, said the Supreme Court will also have to weigh how much power the executive branch has when making its decision.
“If (they) do go forward and allow the program to be shut down, it really gives the executive branch a lot of power to do things without oversight, at least in the immigration context and potentially in other areas as well,” Rabin said.
Motomura said he believes the fate of DACA recipients will rely heavily on who is elected in the 2020 presidential election. If President Donald Trump is reelected, the administration could still rescind DACA, but in a legal manner, he said.
“For example, … let’s say the Supreme Court tells its administration that it went about the rescission in an improper and illegal way,” Motomura said. “Then the restoration can still come back and present it in a way that’s more proper. And … if the president’s reelected, that may well happen.”
Amjad Mahmood Khan, a law lecturer at UCLA, said even if the Supreme Court rules in favor of DACA, he finds the future of the program to be very grim.
“Even if the case is successful in requiring the Trump administration to provide a policy rationale with more detail than they’ve provided in their 2018 memo, they will do that,” Khan said. “They may lose the case, but they win the war in the sense that they end DACA because all they have to do is turn around and provide some kind of policy rationale to end DACA, which they can.”
Khan added U.S. Immigration and Customs Enforcement removal proceedings for DACA recipients have already begun, suggesting the way the current administration is headed.
“That’s very important to understand, that ICE has already reopened removal proceedings,” Khan said. “Even some DACA participants have already conceded to being deported to avoid other complications. And so this is definitely where the current administration is headed.”
Jennifer Chacón, a law professor at UCLA, said she thinks the Supreme Court justices are reluctant to decide this case, adding she believes the Supreme Court wanted Congress to step up and make the decision.
“I think (the Supreme Court justices) were really hoping that Congress would do something sensible,” Chacón said. “(It is) an area where the executive branch does have a fair amount of discretion to act, and so I think they were hoping not to have to weigh in on the power of our executive, in hopes that Congress would step up and do something.”
However, Motomura said it is difficult to predict the Supreme Court’s decision because it is difficult to know which way some of the Supreme Court justices will rule.
Chacón added she thinks it is important to avoid making overly confident judgments about the Supreme Court decision because those judgments can add to the anxiety many people are already facing.
“It’s a really highly stressful situation for a lot of students and workers who have DACA right now,” Chacón said. “No projection is perfect.”
Rabin said she has noticed a reduction in DACA applications in the public schools that the clinic serves, since people who do not have DACA cannot submit new applications. The School of Law’s Immigrant Family Legal Clinic provides immigration legal services to public school students, teachers and residents of Koreatown.
“There’s a lot of students who would have been DACA recipients … if they were just a few years older who can’t apply,” Rabin said. “And then there’s the students who have it who are now applying for college or planning, they’re trying to plan for their futures, and it’s just so difficult to with so much uncertainty.”
However, Chacón also said she thinks people should continue voicing their opinions about DACA. She said no matter what decision the Supreme Court reaches, she thinks people should push Congress to come up with a long-term solution.
“I wouldn’t turn to the courts, I would really be focusing pressure on Congress and on the administration,” Chacón said. “I would be making clear not just that the program is popular, but that the individuals who have received relief under the program should be allowed to remain and should be allowed to remain under more generous terms.”