The Supreme Court Needs to Decide With Finality Whether DACA Is Legal

The Court punted on deferred action in 2016, denied certiorari before judgment in 2018, and may yet again evade a merits ruling in 2019


The Supreme Court's October 2015 Term was cut short because of Justice Scalia's unexpected passing. As a result, the Justices were unable to decide several of the most important issues on the docket. For example, the short-handed Court punted in Zubik v. Burwell. (To this day, the judiciary continues to grapple over the contraceptive mandate.) And the Court also split 4-4 in Texas v. U.S., which considered the legality of DAPA. At the time, I wrote in the Harvard Law Review that the latter case stood in a unique posture: "Because this case will likely return to the Court following the remand, there will be a rare opportunity to revisit the appeal in a new light."

Of course, I expected Hillary Clinton to win the election, and continue to defend DAPA, as well as DACA. Instead, Donald Trump won the election. His administration promptly terminated DAPA, and after pressure from conservative states, announced the decision to suspend DACA.

The Supreme Court, therefore, was never called upon to decide the legality of DAPA, as well as DACA, directly at least. Instead, the Justices were asked to decide a related, but distinct question: could DACA be suspended based on the Attorney General's conclusion that the policy is illegal.

In January 2018, the Solicitor General submitted a petition for certiorari before judgment. He urged the Court to hear the case as soon as possible in light of the sweeping consequences of the policy. The Solicitor General's urgency was obvious: every day that lapsed, as Dreamers further relied on the policy, would make it more difficult to wind down DACA. The Court denied that petition in February 2018. As a result, the issue could not–and indeed will not–be resolved until June 2020. Right before the next presidential election.

Now the case is at last before the Court. And, based on my reading of oral argument, we may get a third dodge: the Justices will rule that the rescission memorandum is not subject to judicial review. This decision would leave open the legality of the policy for the foreseeable future. And, due to the timing of the wind-down period, the policy may not be suspended until after the inauguration date.

In theory, a Democratic President could simply revoke the cancellation memorandum on January 20, 2021, and allow the Dreamers to renew their status. Indeed, the new President would likely expand the policy to account for people who entered the United States at a later date. At that point, Texas would simply go back to District Court and seek another injunction to block the policy. Throughout this entire period, as the executive's position waxes and wanes, the status of the Dreamers will remain in flux. And the cycle would continue indefinitely.

A Supreme Court ruling based on justiciability will usually be viewed as a minimalist decision (however that term is defined). Why should the Court decide a very difficult question when it doesn't have to?

Justice Gorsuch alluded to an answer in a related colloquy, in which he cast doubt on the benefits of a remand:

JUSTICE GORSUCH: Well, if I might ask a question about that if we're talking about the merits then, and then I –I'll pass off the baton. The reliance interests that we've -we've talked about earlier, I –I think your -your friend on the other side would say we did address reliance interests in a paragraph and we could do it in 15 pages, but we'd say pretty much the same thing at the end of the day, and it would take another six years, and it would leave this class of persons under a continuing cloud of uncertainty and continue stasis in the political branches because they would not have a baseline rule of decision from this Court still on this issue.

The Court should resist the siren call of restraint. There is nothing minimalist about such a ruling. Indeed, another dodge would allow the reliance interests of the Dreamers to become even further cemented in our polity. However difficult it is for the government to justify rescission today, it will become even more difficult to do so in two years when the case comes back up on remand. A punt here would effectively cement DACA as a policy, without ever deciding its lawfulness.

The Court should issue, in Justice Gorsuch's words, "a baseline rule of decision," now. If DACA is illegal, then the administration was justified in suspending the policy. If DACA is legal, then the 46th President could resurrect the policy. I have an opinion on which answer is correct, but I would much prefer a clear decision one way or the other, rather than further dodges. Letting this issue linger for the foreseeable future creates uncertainty and doubt in all three branch of government, and worst of all, leaves the Dreamers under a "continuing cloud of uncertainty."

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  1. Gorsuch’s statement is insightful. The amount of time cases take is an injustice that the entire judicial branch should be ashamed of.

    1. Yes. This is an important point, and one I think that partisans from both sides can agree with.

      1. I wish that were true, but when each side is doing something they’re pretty sure will get struck down (abortion or gun bans most commonly) they’re happy to play a revolving role of injunctions, because a committed legislature can pass bills faster than a judge can enjoin them.

    2. I’d agree here. A constitutionally dubious policy which is made, then held in judicial limbo forever is not a good way to make policy. A judicial decision should be made on it.

      1. Yes, the court should rule on legality of DACA especially since they are hearing the appeals of the 9th and 4th circuit decisions both of which declared DACA legal.

  2. And this is the whole problem of instituting a problem like this by executive order instead of actual law in the first place. It leaves everything up in the air and uncertain, including if it’s going to be continued.

    1. Congressional laws can be repealed, too. The “up in the air” problem is the federal judiciary’s pointless involvement in this fight. That’s solvable.

  3. The Supreme court is dodging it. They’re dodging a lot of things they should by rights decide.

    As an institution they’re in control of their own docket, and they’re getting lazy.

    1. I would disagree with you. The SCOTUS is finding itself increasingly in the middle of issues that need to be resolved by legislation. It is reluctant to take on the role and “legislate from the bench”. The lazy people here are Congress. They do not wish to advance legislation and in doing do so put themselves on the record as for or against new laws. The Executive branch is also guilty here. It is well within the President’s authority to revoke DACA, yet President Trump want the court to find the law unconstitutional and in doing so remove his culpability in eliminating DACA. SCOTUS has every right to say a pox on all of you for dumping this in our laps.

      1. Nobody on my side is asking them to legislate from the bench. DACA is either constitutional or it isn’t, and neither conclusion is legislation. That they’d rather the political branches didn’t confront them with this case is irrelevant.

        And, no, the Supreme court hasn’t got every right to say a pox on all of you; They’re presented with a case, they should resolve it.

        This isn’t the only example of them dodging things. After McDonald they stopped taking 2nd amendment cases, in the teeth of very blatant circuit splits.

        1. “DACA is either constitutional or it isn’t, and neither conclusion is legislation.”

          Congress and the Executive can make their own independent judgments re: constitutionality. They don’t have to submit the question to the Court at all. If Congress and the President agree it is unconstitutional, they can just not have DACA.

          “They’re presented with a case, they should resolve it.”

          Nonsense. SCOTUS should respect its coordinate branches and stay out of their way when they’re having a fight. It certainly shouldn’t step in just because Texas wants an answer.

          1. ” If Congress and the President agree it is unconstitutional, they can just not have DACA.”

            The President decided it was unconstitutional, and this very case was because the courts WOULDN’T let him just not have DACA. No need for Congress to be involved, as they weren’t involved in creating the program in the first places.

            Which is exactly WHY it’s unconstitutional!

            1. “The President decided it was unconstitutional, and this very case was because the courts WOULDN’T let him just not have DACA.”

              Right, which is a great argument for judicial minimalism. As predicted by Professor Blackman, SCOTUS is going to declare the district court decision error. (It should not have been reviewable at all.)

        2. Not to mention that, even when a lower court does rule for 2nd Amendment rights, the governments get years long delays, stays while the appeals are pending, and so forth. But when a district court judge finds a right to “marry” a person of the same sex, they get “marriage” licenses the very next day.

      2. “The SCOTUS is finding itself increasingly in the middle of issues that need to be resolved by legislation.”

        It was already resolved by legislation. Illegal immigration is illegal.

        This wasn’t good enough for the big business lobby that wants to suppress wages and increase profits, and the Democrats who need to dilute American voters that won’t go along with their socialist agenda. So they’re going around the law.

        1. If you’re so certain that Presidents Obama and Trump just brazenly disregarded “the law” what difference would an order from SCOTUS make? If Congress wants to confront the President, it can do so without Justice Kagan’s permission.

          1. If only there was a third party, someone other than Congress or the President, whose job it was to interpret the law, and to definitively determine when something disregarded the law. Then, as a matter of policy, the other officers of the executive branch would have to listen to this third party, whose job it was to definitively interpret the law, and any questions in it.

            1. “Then, as a matter of policy, the other officers of the executive branch would have to listen to this third party, whose job it was to definitively interpret the law, and any questions in it.”

              Why? If the President ignored Congress in the first place, why wouldn’t he ignore SCOTUS.

              “To be sure, if Congress cannot invoke our authority in the way that Justice Alito proposes, then its only recourse is to confront the President directly. Unimaginable evil this is not. Our system is designed for confrontation. That is what “[a]mbition . . . counteract[ing] ambition,” The Federalist, No. 51, at 322 (J. Madison), is all about. If majorities in both Houses of Congress care enough about the matter, they have available innumerable ways to com-pel executive action without a lawsuit—from refusingto confirm Presidential appointees to the elimination of funding. (Nothing says “enforce the Act” quite like “. . . or you will have money for little else.”) But the condition is crucial; Congress must care enough to act against the President itself, not merely enough to instruct its lawyers to ask us to do so. Placing the Constitution’s entirely anticipated political arm wrestling into permanent judicial receivership does not do the system a favor. And by the way, if the President loses the lawsuit but does not faithfully implement the Court’s decree, just as he did not faithfully implement Congress’s statute, what then? Only Congress can bring him to heel by . . . what do you think? Yes: a direct confrontation with the President.”

              1. Oddly enough, given a direct new Supreme Court decision issuing the a legal ruling that goes against what the President recently ordered, many, if not most or all senior Administrative officials will say
                “The SCOTUS said this. This is illegal. We can’t do it”.

      3. The irresponsible people here are Congress. They do not wish to advance legislation and in doing do so put themselves on the record as for or against new laws.

        I agree. This is a political question. The Congress needs to resolve it. This is a case where I would like SCOTUS to step back, and let the other branches resolve the question.

        1. They did resolve it: DACA was proposed, and rejected.

          1. Yep….there is that. 🙂

  4. The Court should resist the siren call of restraint.

    Is this a call for an advisory opinion? I mean, I know the Court’s been seen to play with justiciability before, but this is kind of a blatant policy-based argument to ignore such concerns.

    1. No. DACA’s legality appears to be squarely before the court. California says it’s legal, DHS says it’s not. One of the Q’sP is whether the rescission was lawful. DHS claims that the rescission was lawful because DACA was not. The court can reach that question if it chooses.

    2. How is it an advisory opinion? One way of resolving this case is to hold DACA unconstitutional. Another way of resolving this case is to hold DACA constitutional, and then, based on that conclusion, hold the President’s order improper.

      In neither of those two scenarios would the holding on the constitutionality of DACA be an advisory opinion.

      1. But the Court isn’t being asked to determine if DACA is unconstitutional. It’s asked to determine if suspending DACA violates the APA. If the answer is “no, or at least we can’t answer it” that would also resolve the case.

        1. And the administration’s position is, essentially, “Terminating an unconstitutional program can’t violate the APA.” Which makes whether it’s unconstitutional kind of relevant.

      2. Or, DACA is constitutional as a broad enforcement decision under one president who thinks it’s within his power to do so, and the reverse is also constitutional when a different president thinks he lacks the same power.

        The Court can merely say that either action is within the bounds they will hold the Executive to, but that different executives may have their own enforceable views on their own powers.

  5. Well the legal question in United States v. Texas is non-reviewable in the first place. A minimalist Court would decline to address the question at all. The argument here, then, is that it isn’t minimalist for the Court to decline to address the question now, since the Court isn’t reliably minimalist for a future decision. This is nonsense. The answer is that the Court should act like a minimalist now and in the future. This is not a question for the Courts, but the political branches. While dreamers’ reliance interests may be better served by an activist Court–or they may not–this is a normal political fight between two other coordinate branches of government. Texas (and the other complaining states) are already represented in Congress and the Executive.

    Placing this political question into SCOTUS judicial receivership will not do the system any favors, to borrow a line from the late Justice Scalia.

    1. Somehow, I doubt you argue the same point when it comes to the lawsuits against Trump building the wall.

      1. What? I think the President’s decision to suspend DACA should be non-reviewable. I think the President’s decision to declare a fake national emergency and divert funds is something that should be addressed by a direct confrontation between Congress and the President, and would prefer that direct confrontation to involvement of the Supreme Court. I doubt there is any commenter on this website who has more zealously argued for judicial minimalism–consistently–than me. I don’t allow my disagreements with the President on policy to change my views about judicial minimalism.

        If you have any doubts about what my position would be, just ask. I’m not sure precisely what you mean, but tell me what argument you think I wouldn’t make re: “lawsuits against Trump building the wall” and I’ll tell you if I would make them, or not. I firmly support political solutions to political problems over judicial involvement, even if my ox is being gored.

        1. “I think the President’s decision to declare a fake national emergency and divert funds is something that should be addressed by a direct confrontation between Congress and the President”

          It was. The National Emergencies act has a procedure for Congress to override the emergency declaration. They tried it, and fell short of the necessary number of votes. So they had that confrontation, and the President prevailed.

          1. I don’t agree with your interpretation of the National Emergencies Act, and I disagree (on policy) with the President that there is a National Emergency, but I’d rather that fight continue between the President and Congress, rather than have it placed in the hands of SCOTUS.

              1. Missed closing my html there, but the link works.

  6. Why ? One doesn’t decide questions of law for speculative reasons.

    If the Trump admisnistration wants to end the program as a matter of policy discretion, that ought to be enough to end it.

    And if a future Democratic administration wants to reinstate it, then it will be a live issue.

    But why does Article III standing permit a federal court to offer an advisory opinion to a currently nonexistent possible future administration just because it might possibly want to have a different policy from the current one?

  7. I also don’t understand the reliance issues. When police do a sting operation, those stung rely on a belief that the folks they are dealing with aren’t police collecting information on them for purposes of future law enforcement.

    Why is this different? To put it crudely, DACA can be regarded as nothing more than a massive sting operation to get illegal immigrants to supply information about themselves, to make it easier to round up and deport them when the time comes. Of course they were told otherwise and believed it. But what makes them different from every other criminal who is led to believe otherwise in every other sting operation?

    1. The reliance issue is just an emotional appeal to avoid facing how badly Obama screwed these people. He didn’t give them a legal status in any meaningful sense. He just gave them a promise that he wouldn’t try and deport them. That promise means nothing. Obama, despite what the open borders hacks at Volkh try and claim, had no power to bind himself much less future Presidents. He didn’t even have the power to bind immigration judges. Even if I have DACA status, there is nothing to stop an immigration judge from ordering my deportation if some rogue ICE office asked them to do so. These people are still illegal aliens under the law.

      The fact that they believed Obama and relied on an illusory and illegal promise doesn’t change their status. All it does is create an emotional and moral appeal to grant them actual legal status in place of the fake status they have.

    2. Promising nonprosecution is different than promising a contest prize or some other ruse.

      When someone falls for a ruse, shame on them. But when the sovereign says “you can go ahead and do X, don’t worry, you won’t be prosecuted”, that’s a promise of immunity. And promises of immunity ARE often enforceable (see, e.g., the self-incrimination caselaw).

      1. But they didn’t even get a promise they wouldn’t be deported. The “D” in “DACA” stands for “deferred”. All they were promised was that they wouldn’t be deported right away, and they were explicitly told that the government could change its mind at any time.

        1. Sure, but that’s a very formalistic argument. The nature of the program was for them to come out of the shadows and identify themselves to receive government benefits. So the subtext that you can safely do that is important as the text here.

          Bear in mind, I am not saying the current case turns on this. But I think the argument that DACA recipients have reliance interests is not unreasonable and is not conclusively refuted by the formal name of the program.

          1. I don’t think it is unreasonable but it is problematic. If you recognize those interests, then any time an executive does something unlawful, the fact that someone relied upon it can be used as a post hoc justification for its legality. And that is not a good precedent at all.

            The difference between DACA and a grant of criminal immunity is that prosecutors have the authority to grant immunity in an individual case. That is entirely different than granting immunity to an entire class of criminals.

            The analogous case to DACA would be a local DA promising to no longer prosecute marijuana possession and then using the fact that people relied on that promise as justification for preventing a future DA from reversing the decision and prosecuting those cases again. By your logic, once a DA made a promise, the reliance on it by people in the community would keep future DAs from reversing it. And that is nuts.

            1. There are still a few DA’s who don’t believe in spousal rape. I suppose once you get such a DA into office, have them promise that there will be no prosecutions for such, it’s open season until the end of time. Reliance interest!!

            2. Well, how about this example. Suppose Carter announced that everyone who went to Canada to avoid the Vietnam War could come back and wouldn’t be prosecuted.

              Then a bunch of people come back, and Reagan then announces “we’re gonna prosecute you anyway, Carter had no authority to promise that”.

              I am not making an argument on legality- that would require expertise about criminal law and promises of immunity that I don’t possess. But if people take an action that is potentially detrimental to their rights based on a government representation that they may do so without risk, that does create significant reliance interests.

          2. I like formalistic arguments. The law is SUPPOSED to be formalistic.

            If you tell somebody, “You can file for this program, but we make no promises.” you haven’t made any promises. Not any the law should take cognizance of.

            Period, end of story.

            1. If only the DACA memo had mentioned this! Then we could… oh wait:


              “This memorandum confers no substantive right, immigration status or pathway to citizenship.
              Only the Congress, acting through its legislative authority, can confer these rights. It remains for
              the executive branch, however, to set forth policy for the exercise of discretion within the
              framework of the existing law. I have done so here. “

            2. I like formalistic arguments. The law is SUPPOSED to be formalistic.

              The law is not a brooding omnipresence in the sky, Brett.

              1. But it IS a system of formal rules.

                1. Not really, unless you are talking about Roman or Napoleonic Law or something.

                  The Common Law system is a system of case by case adjudications, which generate rules of varying levels of formality through an iterative process with plenty of play in the joints to accommodate, as Holmes called them, the “felt necessities”. It’s a wonderful inheritance from the British, and it’s enacted in the Constitution.

          3. This is crazy. You might be able to make the argument that Obama can grant permanent immunity from deportation, although I’m skeptical of that. When the program ends, their ongoing presence is a fresh violation, much like kidnapping is an ongoing crime. They can be deported for their ongoing presence, just like any other unauthorized immigrant.

            But even if Obama could do that, he didn’t in fact do so. Immunity from the law in perpetuity by explicit grant is questionable. Immunity from the law in perpetuity by subtext is insane. The program did, at most, what the program said it did and perhaps not even that to the extent it exceeded statutory authority. To daisy chain that into a super legal status is untenable and without precedent.

      2. So if President X doesn’t like labor or environmental laws, and said laws don’t provide a private cause of action… all he has to do is paper it up and grant immunity to prosecution? And, what’s more, this binds his successors such that businesses can go on violating labor law and polluting with impunity? Your understanding of presidential power is radically broad.

      3. “that’s a promise of immunity”

        You are making an estoppel argument. Estoppel generally does not run the government.

  8. It is not up the Court to clean up this mess. Rule by executive discretion, which is all DACA is, necessarily involves the law changing with the attitude of the administration in power. It is as Obama informed us “discretion” after all.

    DACA was a grossly illegal act where the President sought to unilaterally re-write immigration law through selective enforcement. That legality of that act, however, is not the issue here. The issue here is the current President’s power to undo that act. And that is the only question upon which the court needs to rule. If it rules that somehow Trump can’t undo it, that necessarily means DACA was legal. If it rules he can, which is almost certain to happen, that renders the issue of whether it was legal in the first place moot.

    If some future President holds out this carrot again, the court can rule on it then.

  9. The court needs a case to rule on Anchor Babies too. The misreading that makes illegals citizens is a huge magnet that needs to be destroyed.

    1. Wong Kim Ark is both a correct decision and is never going to be overturned even if you think it is wrong.

      Conservatives need to figure out how to win elections and develop policies consistent with birthright citizenship. It’s not going anywhere.

      1. “develop policies consistent with birthright citizenship. It’s not going anywhere.”

        I mostly agree with you here, but your wording on what I quoted isn’t great. There are two separate forms of birthright citizenship, one by blood (inherit citizenship from parents*) and one by territory (born in the jurisdiction of the US. US law recognizes both. The people you criticize only want to get rid of one.

        * The child of US citizen parents is a citizen by birth, even if born in a foreign country.

        1. I’ve wondered about this one.

          Suppose that Mexico declares war on the US, and their strategy entails surreptitious infiltration of the US by terrorist sleeper cells (hey, my hypothetical). If those Mexican army infiltration units had children (suppose by also transporting kidnapped Venezuelans), would the children be US Citizens at birth? If yes this is a boring hypo and it’s over, but if No then how do you tell them apart?

          The easy rule of hostile military invaders aren’t “subject to the jurisdiction thereof” because they fall under the Geneva Conventions and the Law of War isn’t useful because it doesn’t provide a way to tell them apart, so how do you know which is which?

          1. Well, how do you prove someone was born in the US who was a home birth? (And I might add, this was a live issue at the time the Fourteenth Amendment was adopted. Many of the people the amendment made citizens were born in slave cabins, after all.)

            Problems of proof are just that- we have courts that can determine under what circumstances someone was born with various forms of evidence.

        2. Well what we usually call birthright citizenship is the provision of the Fourteenth Amendment that says that all persons born in the United States and subject to its jurisdiction are citizens of the United States.

          And that, as I said, isn’t going anywhere.

  10. The left has created this entire problem. If they would just follow the rule of law (which they like to bring up as a talk point and beat that drum when it comes to Trump ignore inconvenient laws other times).

    DACA was illegal from its outset and the only reason the courts have sided with the left is because of the “Orange Man Bad” exception to legal rules.

    1. And because every third worlder allowed to stay is more Democrat Party votes, if not now, eventually.

      1. More illegals to stuff illegal votes into ballot boxes. Keeps the Dems in office and the welfare checks being delivered on time. Nice little scam the left has going on.

        (Remember when the Rodney King riots mysteriously ended because welfare checks weren’t being delivered? Show you how much control the left gets out of the public dole).

  11. The Supreme Court in general remands way too much. Its wasteful and costly to litigants.

  12. So is it being suggested that the court should rule that this matter is nonjusticiable and then add as orbiter dictum that Obama’s DACA order was illegal?

    1. Obiter dictum, that is.

  13. It is remarkable that the bigots think they can win this round of America’s successive flirtations with ignorance and intolerance associated with immigration.

    Did right-wingers uniformly refrain from studying American history? The bigots do not win, at least not over time.

    1. So you are finally facing the fact that your bigoted behind is going to get booted out soon enough?

    2. Soviet Russia wants you back comrade. For the people’s proletariat, and the ultimate victory of the left wing.

  14. I fully agree with Professor Blackman’s analysis here.

    The SCOTUS needs to make a decision on whether or not this sort of action in regards to DACA is constitutional or not. On whether or not this sort of executive action, which goes far beyond simple prosecutorial discretion, is constitutional or not. Because it will come up again. And we’ll be right here again, with a question on whether or not it’s constitutional.

    Kagan will likely try to pull Roberts into a minimalist decision that says “well, it can’t be reviewed right now by the SCOTUS, as it’s an agency decision” with a 6-3 or 7-2 decision (including Breyer), which punts the constitutional question about DACA until later. At which point it may get revived in 2020 or 2024, or 2028, and states will sue again, and we’ll be back here.

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