The New Yorker Radio Hour - The Supreme Court Weighs the End of DACA

Episode Date: June 16, 2020

This month, the Supreme Court is expected to decide a case with enormous repercussions: the Trump Administration’s cancellation of DACA, a policy that protects young immigrants commonly known as Dreamers. In November, Jonathan Blitzer spoke with two attorneys who argued the case, just before they went before the Court. Ted Olson, a noted litigator, is generally a champion of conservative issues, but he is fighting the Trump Administration here. Luis Cortes is a thirty-one-year-old from Seattle arguing his first Supreme Court case. He is himself an undocumented immigrant protected by DACA; if he loses, his own legal residency would be immediately threatened. Plus, the writer Bryan Washington, a native of Houston, remembers the social life of gay bars before the pandemic. New Yorker Radio Hour listeners, we want to hear from you.  We have a few questions about the show and how you listen to it. The survey takes about twenty minutes, and your feedback will help us make our podcast better.  Take the survey here.

This is the New Yorker Radio Hour, a co-production of WNYC Studios and The New Yorker. Welcome to The New Yorker Radio Hour. I'm David Remnick. This month, the Supreme Court is expected to issue a decision that will affect hundreds of thousands of Americans, undocumented immigrants protected under DACA, the people known as Dreamers. DACA stands for deferred action for childhood arrivals. President Obama issued the policy as an executive order after an immigration bill, the Dream Act, the Dream Act, repeatedly failed to pass Congress. The Trump administration ordered DACA cancelled. A lawsuit was filed to prevent it from doing so, which reached the Supreme Court in pretty short order. If the court rules in favor of the Trump administration, all the undocumented people who have been living with relative freedom under DACA could be subject to deportation. Most of these people grew up in this country, and some have no memories of any other. In November, Jonathan Blitzer spoke to

of the lawyers making the case for the dreamers right as they were going before the Supreme Court. I want to play that story again now to remind us of what's at stake. Here's Jonathan Blitzer. I first met Luis Cortez in February of 2017 because I was writing a story about a DACA recipient and I needed to get in touch with that person's lawyer. Luis was his lawyer. In the course of the conversation, it starts to come out that Luis himself is a DACA recipient. And so his own fate is bound up in the fates of all of the clients he's representing who also have DACA. Luis was born in Moralea, Mijuq Khan in Mexico, and came to the U.S. with his parents when he was barely a year old. He had no sense growing up that he didn't have legal status.

The first time I think I really realized what being undocumented meant was when I was in eighth grade. And there was a trip to Europe. that the eighth grade class was taken. And in order to offset some of the costs, we were going to sell seize candies chocolate in order to fundraise. And I sold a ton of chocolate. I was hustling that chocolate in hardcore. And I had raised enough money to go.

And it wasn't until after where I let my parents know, like, I'd made it, and I have all this money, that they let me know, like, you can't go. Because you weren't born here. And that's all I'm saying. knew at that time. Like, I couldn't go because I wasn't born here, but I didn't really know much more of the mechanics in eighth grade. I remember being very pissed. Yeah, yeah. That I wasn't able to go. Yeah. Yeah. And, you know, you go to college, from college, you go straight to law school.

So when you started in law school, it was 2010. Daka wasn't a thought on anyone's mind yet, as such. And so there were questions, too, about what your working life would look like even after law school, right? Because you didn't have necessarily a legal avenue to be employable. That's right. At that time. So what was your sense of what DACA was? Did it immediately seem like a lifeline to you?

Was it something you were suspicious of? How did you understand it? Yeah. So it was, I had just finished my second year of law school and it was during the summer. So I was going into my last year. and then DACA is announced as I'm about to start my last year of law school. And it almost seemed too good to be true. It seemed like it fell from the sky.

Now, let's be clear, this is not amnesty, this is not immunity. This is not a path to citizenship. It's not a permanent fix. This is a temporary stopgap measure that lets us focus our resources wisely while giving a degree of relief and hope to talented, driven, patriotic young people. It is the right thing to do. I decided to apply in a very nervous way I submitted my application. The scariest part was going into the DHS offices to get fingerprinted because those DHS offices are the same offices that ICE is located. So you have the sense of like, what if I get fingerprinted and I don't come out?

Right. And, but I remember when my work permit came in and I got my security number, it, it was life-changing. Yeah. And so you go on, thanks in large part to having this lawful status conferred through DACA, you go on to practice immigration law. Yeah. You're living your life. You have your clients. You're working in Seattle.

Yeah. And then 2016 happens. and President Trump takes office, and not entirely out of the blue, because there had been murmurings of this, but still somewhat suddenly, the administration comes out and cancels DACA just outright. Good morning. I'm here today to announce that the program known as DACA that was effectuated under the Obama administration is being rescinded. My reaction was both out of frustration and disappointment. And part of my frustration was that this is the fear realized by hundreds of thousands of DACA recipients when they first applied. You know, what happens if they do away with this program and then start?

And, you know, now they have all of our information. And this is 700,000 people. Yes. Yeah, hundreds of thousands of people. And their communities. And, you know, their employers, their spouses, their, we're, children. We're talking about millions of people now. And so it was a very confusing and kind of chaotic time. We were flooded with phone calls that day, that week, about whether DACA is done

away with altogether, what now. And interestingly enough, you know, as we're having this conversation, I'm almost having this conversation with myself, too, about, you know, if DACA does end, what then? And I'm as explaining it to them, I'm, you know, you know, you know, hearing myself saying it out loud, me realizing like what then? And what were you saying? What were you hearing yourself say? That there really isn't any other way. That there is no other way to get status. And that we're going to be back to what we were before. Hiding. A number of different groups in a number of different venues challenged the legality of how the administration ended DACA in the first place.

And you are going to be one of, is it, three people? Four. Four people sitting at the plaintiff's table in front of the justices. Who else is going to be at the table? Right. There was a lot of discussions about who would we present this case. And representing the individual DACA recipients is going to be myself. And Ted Olson, who was formerly the Solicitor General under George W. Bush.

And so Ted Olson's not someone just on its face who would be aligned with this cause. I mean, a sort of legendary, conservative Supreme Court litigator. You know, Ted is a very skilled Supreme Court litigator and knows the pace of the arguments and how to, there's a special art and the science to argue the Supreme Court. So, you know, we feel very lucky to have someone like Ted around. Hello. Hi, Mr. Olson. Yes. How are you?

This is Jonathan Blitzer from The New Yorker. Thanks for making the time. We're happy to do it. Could you talk a bit about what you see is the central issue of this case? It all boils down to whether or not the termination of DACA was legal, and what the reasons for doing so are and what the consequences are. When the government of the United States announces a policy that has an immediate impact on various substantial numbers of persons, the impact on those individuals requires the government to announce reasons for its decision to explain what it is considered in making that decision, explaining why that decision is lawful so that there will be accountability for those decisions. And this administration, announcing the rescission of this program, gave no reasons for the decision and no explanation for it.

You know, there's this phrase under the Administrative Procedures Act called Arbitrary and Capricious. An agency can't act arbitrarily or capriciously. And one of the ways that it does that is that goes through the rationale and it goes through the consequences of all of a sudden sharply changing a policy. And, again, it could consider everything and say, yeah, it's worth it, fine. That's fine, as long as it does its homework. And there doesn't seem to be any kind of considerations that were made here. In terms of your specific strategy now coming before the justices, are there particular justices on the court you're targeting your arguments? Two, how are you thinking about the composition of the court and how does that impact the way in which you frame your case?

Well, what we do is that we attempt to convince all of them. We're not sanguine about how any justice will vote on a particular issue in a particular case or anything like that, but we want to make arguments that are focused on the way the justices have decided cases in the past. And in this area where all we're asking is for the court to recognize that this administration, and by the way, not for the first time this administration, has acted in an arbitrary fashion, ready-fire aim. And we want the justices, whichever end of the political spectrum, their backgrounds might be, to understand that this is a rule of law case. It isn't a liberal or conservative case. It's a rule of law case, but it's a rule of law case involving hundreds of thousands of individuals

who will be hurt by an abrupt and unexplained. and unjustified change in policy. This puts the human face on this is very, very real to all of these individuals who are going to school, raising families, serving in our armed forces, forming businesses, becoming a part of the community, and then having to live with this sort of Damocles hanging over them all of the time and the uncertainty that that causes. you can imagine how difficult it would be to live a life in the shadow of that doom, so to speak. This is a very, very serious thing. Luis, you're going to be one of the few people in the courtroom, but certainly the only person sitting at one of the litigator's tables before the justices whose personal life is at stake, given what the arguments are and how these arguments play out.

what does that, what does that feel like? Does it feel, um, does it feel like a burden? Does it feel like an opportunity? Um, does it make you nervous? Does it make you, um, I don't know. Um, yeah, you know, it kind of depends what hat I'm wearing. You know, as a lawyer, I am very stoked about it. Um, I didn't think that I would have a Supreme court case this early on in my career. And so, I'm very excited to be not just in the court, but at the litigator's table. It's also very daunting. The nine people who are going to be hearing the case and who I'll be looking at them and they'll be looking at me is, you know, they're going to have a tremendous impact on my life.

And they're the ones who get to decide whether my clients are deported and me with them. Do you have faith in those nine faces you'll be you'll be staring at? I have to. You know, I, you know, one of the things that I, I have learned as a lawyer is that in what makes, I think, the U.S. significantly different from any other country, it's its court system and its ability to do the right thing. the just thing when there's injustice done. And this, although it's imperfect,

this country has an amazing history of doing that. Staff writer Jonathan Blitzer spoke with Luis Cortez and Ted Olson. The Supreme Court's decision on the cancellation of DACA is expected this month. Now we're going to close the show with the writer Brian Washington. Brian is a fiction writer and an essayist

and you can also find some of his food videos at New Yorker.com He's a hell of a cook. Recently, Brian has been writing about living through the pandemic in his hometown of Houston. Here's Brian Washington. On my last trip to a gay bar for the foreseeable future, my boyfriend and I played Jenga on a sofa outside. I pulled a piece from a nook. He slid one from a cranny.

A bachelor party was next to us, and eventually someone ran into our tower of blocks. Immediately, 15 pairs of hands, all of them various shades, stooped to gather the people. pieces. Our fingers touched from time to time, grazing wrists, and we laughed about the touching. Didn't think twice. Another time, in Austin, we found a gay bar on a nothing Saturday night. There was no reason for the place to be packed from wall to wall, with people breathing all over one another, sweating and pulsing and winding and shoving, but it was. We were. We were a blob of gas and air. At one point, I elbowed the guy shaking beside me, and after I apologized, he touched my ear and said it was fun. One night, at a gay bar in Houston, I watched a group of guys huddled around

a man who was flailing his hands, tickling the Christmas lights hanging above him. He looked maybe 40. He'd just come out. His friends stood beside him, raining thick eye in, asking passers-by to give him a kiss on the cheek to celebrate. A loose line formed beside them, ebbing and flowing with the music, congratulating and patting and chanting, and so we'd all just won some championship. One night, a few days after the Pulse shooting, I sat in an Atlantic gay bar where nobody said anything at all. Instead, we touched the small of one another's back in passing and gently squeezed every neighboring shoulder. One night, in New Orleans, I sat with a straight friend who had never been to a gay bar before. We vaped on the balcony and he noted the physical proximity of the,

of the space. Everyone stands so fucking close, he said. Just then, a man slipped between us, cupping our elbows, not even looking at us. It's worth wondering how a space largely free of threats evolves when every space becomes a threat. It's worth wondering what the function of these spaces is and whether they'll survive and what their survival will mean as the nature of physical space continues to change. Some of us waited a long time for those spaces. Some might not mind waiting a bit longer. Some of us don't have time to wait. You miss it when it's gone. But before everything changed, there was one night walking back to our car from a gay bar in Houston when we skipped along the broken sidewalk, buzzed on proximity and beer and jillikillas. Turning the corner, we ran into a guy staggering back to his own

with his own people. We hugged in the street, apologized, kissed one another's cheeks. We said sorry. Thank you. Love you. Be safe. Goodbye.

Brian Washington in Houston. His novel, Memorial, is coming out later this year, and you can find a lot more of his work at New Yorker.com. I'm David Remnick, and that's the New Yorker Radio Hour for today. You can subscribe to the podcast of the show and you can always find us at new yorkerradio.org. Thanks so much for listening. See you next time.

The New Yorker Radio Hour is a co-production of WNYC Studios and The New Yorker. Our theme music was composed and performed by Merrill Garbus of Tune Arts, with additional music by Alexis Quadrado. This episode was produced by Alex Barron, Emily Boutin, Avae, Avae Carrillo, Rianan and Corby, Cala Leah, David Krasnow, Caroline Lester, Gauphin and Putubuele, Louis Mitchell, Michelle Moses and Stephen Valentino with help from Alison McAdam, Morgan Flannery,

Meng Faye Chen, and Emily Mann. The New Yorker Radio Hour is supported in part by the Cherina Endowment Fund.