The US Supreme Court will next month hear a case that will decide the fate of hundreds of thousands of people—college students, military service members, and workers in American corporations—who came to the US as the children of undocumented immigrants.
They are known as “Dreamers” for a law that never passed, the DREAM Act, which would have addressed their immigration status. And they are living a legal nightmare.
Many Dreamers were granted deferred action from deportation under a 2012 Obama administration policy that was rescinded under president Donald Trump. The high court will hear three consolidated cases arising from challenges to the end of the Deferred Action for Childhood Arrivals program (DACA) that Obama implemented while working on getting the ultimately unsuccessful DREAM Act passed.
That policy granted immigration officers prosecutorial discretion to defer deportation actions for Dreamers who qualified based on their studies, work, or service contributions in the US. In 2017, under then attorney general Jeff Sessions, that policy was rescinded on the grounds it was illegal. But lower courts have already found that the rationale for ending DACA is unsupported, and they have issued injunctions to keep protections in place for those who’ve already been granted deferments.
Now, it is up to the Supreme Court justices to decide. No matter which way they go, they will make some very influential people powerfully unhappy.
Friends in high places
The recipients of deferred action have strong allies among corporate leaders, including Apple chief Tim Cook. He pushed CEO activism to new heights, as Quartz’s Lila MacLellan noted, when he took the unprecedented step of adding his own name—not just Apple’s—to the signatories of an amicus brief filed on Oct. 2. Doing the same was Deirdre O’Brien, Apple’s senior vice president for retail and people. They said they were signing as “leaders, colleagues, and human beings” and wrote that protecting Dreamers was the “moral thing to do.”
Of course, Cook also made the business case for DACA, arguing that the more than 400 Dreamers from 25 countries working at Apple—in stores, engineering teams, and more—contributed uniquely to the company. “Immigrants like them are vital to Apple’s success,” the brief states. “They spark creativity and help drive innovation. They are among our most driven and selfless colleagues.”
Another amicus brief (pdf), filed by 143 industry organizations and companies who “collectively contribute trillions of dollars in annual revenue to the American economy and have millions of employees,” also urged the justices to protect Dreamers. It called them “young people who are now able to live and work in the country that has been their home for most of their lives.” The group includes the National Association of Manufacturers, the National Retail Federation, the USA Chamber of Commerce, the Retail Industry Leaders Association, the American Hotel & Lodging Association, BSA|The Software Alliance, the Information Technology Industry Council, TechNet, and others.
They argue that apart from employing DACA recipients, businesses benefit from the program’s existence directly and indirectly through their customers and end users whose economic life is boosted by it. “Amici’s businesses benefit from DACA recipients’ contributions to the overall economy through their tax payments, spending, and investments,” they write.
The Department of Homeland Security is urging the high court to find that deferred action is illegal, regardless of any economic or social harm. The Trump administration’s position on DACA is that it exceeds executive authority.
That’s an unusual stance, given the fact that Trump and his attorney general, William Barr, are generally champions of expansive presidential powers. Still, they say, there’s no legal basis for exercising prosecutorial discretion with Dreamers, and if the justices disagree the president will be mightily displeased.
According to the lower courts and some legal scholars, the government’s position is incorrect, however. Shoba Sivaprasad Wadhia, founding director of the Center for the Immigrants’ Rights Clinic at Penn State Law and author of the new Banned: Immigration Enforcement in the Time of Trump, explained in a post in SCOTUSblog last month:
In 1976 Sam Bernsen, then General Counsel of the Immigration and Naturalization Service, published a memorandum about the legal authorities behind prosecutorial discretion, pointing to the US Constitution, immigration statute, court decisions and “inherent authority.” These legal authorities have been affirmed by subsequent administrations and applied to deferred action for individuals including victims of domestic violence and sexual assault, widows and widowers of U.S. citizens and those with serious medical conditions or family ties, to name a few.
If the president can’t protect Dreamers by law, as he claims, then he also can’t protect domestic violence victims and others that have for decades received special consideration by immigration authorities. Yet those other policies haven’t faced the same resistance that DACA has from the Trump administration.
In any case, the government is also arguing that the lower courts were wrong to review the termination of DACA at all. So the high court will have to first decide if that is right.
If the justices side with their colleagues below and find that the judges were right to review DACA, they’ll next consider whether the administration’s stated rationale for unwinding the protection is valid.
Deciding against Dreamers would deal a blow not only to the immigrants affected by it, but to American industry, innovation, and the economy, as well as morale, argue businesses in their amicus briefs. But these pleas may go unaddressed if the government convincingly argues that there really is no case during the upcoming hearing.
Whatever happens, everyone will have to hold their breath, as the Supreme Court’s decision could take months.