There’s always the big “but,” right?
Still, before we get to that issue, you resilient Dreamers– nearly 800,000 recipients of the Deferred Action on Childhood Arrivals (DACA) program, deserve a celebratory fist-pump in these unsettling pandemic times.
So please feel free to let out a resounding, open-mouthed, full throated, very amok-like OMG shriek for joy in whatever way you find most appropriate.
You’d probably be emulating the reaction all your friends and relatives exhibited when the news broke that the Supreme Court ruled 5-4 that the Trump administration had fumbled its chance to deport all Dreamers before the 2020 elections.
The four liberal justices (Sotomayor, Breyer, Ginsburg, and Kagan) were joined by conservative Chief Justice Roberts, who supplied the important swing vote.
Victory. But, here’s “big but” No. 1
“We do not decide whether DACA or its recission are sound policies. The wisdom of those decisions is none of our concern,” Roberts wrote in his opinion. “We address only whether the agency complied with the procedural requirement that it provide a reasoned explanation for its action.”
The reason Roberts joined the liberals is not because of policy, but because of the rule of law. And clearly in his view, the Department of Homeland Security didn’t follow the procedures to properly end DACA.
Said Roberts: “Here the agency failed to consider the conspicuous issues of whether to retain forbearance and what if anything to do about the hardship to DACA recipients. That dual failure raises doubts about whether the agency appreciated the scope of its discretion or exercised that discretion in a reasonable manner. The appropriate recourse is therefore to remand to DHS (Homeland Security).”
In the words of golf that the president might understand, Roberts gave the administration a legal mulligan. A do-over.
And that provides another aspect of the “big but.”
The decision is a win for Dreamers, but now Trump’s DHS knows exactly what procedures to follow to get rid of DACA properly in the court’s view.
If DHS does this and the case goes back to SCOTUS, will Roberts line up with the other four justices– the conservative bloc–to allow the death of DACA?
In dissent, Justice Clarence Thomas said the whole thing was an avoidance of a politically controversial but legally correct decision and that “the only solution respondents seek must come from the legislative branch.”
And that’s why the victory today is sweet. But it only lasts as long as a roll of Lifesavers.
WILL THE TRUMP ADMINISTRATION LISTEN TO SCOTUS?
If Roberts is right, the Trump administration must decide. Go back and do things the right way by following the law? Doesn’t sound very Trump-like.
Trump, who supported the Dreamers before getting elected and then switched to appease his hard-line pro-white, anti-immigrant base, will only do what is expedient for him. John Bolton’s explosive new book tells us that: Trump puts his re-election above the nation’s interests.
So considering that the polls show tremendous public support for Dreamers, and that the cost to get rid of them may be too steep in a struggling economy (Moody’s chief economist Mark Zandi put the impact of the loss of DACA on our GDP at $105 billion), and that the Dreamers are actually the kind of immigrants Trump wants to allow in (educated and productive), Trump may just let things lie until after the election.
He doesn’t need DACA to screw up his campaign. Especially on this issue. He likes to play it both ways, and then blame others.
In his first tweet after this morning’s decision, the president was quick to blame the court and then shifted focus to rally his base, saying the SCOTUS decision shows how Second Amendment gun rights could be endangered!
He’s not thinking about DACA. Trump’s focused on his weekend “Make America Sick Again” rally.
So the Dreamers have the gift of time. They’ve been correct all along by focusing on their long-term strategy of getting legislative action by Congress.
Dormant legislation to save the Dreamers exists. The American Hope Act of 2017 is one solution. But are the votes there? Mobilizing key districts to transform the House and Senate in November should be a priority. If that happens, I see DACA and the Dreamers set to become a major issue in 2020, one that could make things very uncomfortable for Trump.
In the meantime, DACA recipients can and should be able to apply to extend their stays legally.
The political winds may be blowing the right way again. At least for the moment. After George Floyd, there seems to be a willingness to confront racial inequality throughout society. Dreamers should not be overlooked in this broad assessment.
So let’s remember that this SCOTUS ruling is a victory, but does not resolve a thing.
SCOTUS made things right on procedure and law. Congress will have to make it right on policy.