Today, Explained - A good day for DREAMers

Episode Date: June 18, 2020

In a major decision from the Supreme Court, DACA lives to fight another day. But it's not in the clear yet. Transcript at vox.com/todayexplained.  Learn more about your ad choices. Visit podcastchoices.com/adchoices

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Visit connectsontario.ca. Ian Millhiser, you cover the Supreme Court for Vox. We spoke on Monday about historic LGBTQ decision. And I ended the interview by saying, Ian, I hope the next time there's a major decision from SCOTUS, the construction will be done. Is the construction done outside your apartment? Yeah, the good news is that whatever my neighbors are doing, they seem to have finished. God bless. Okay, so let's talk about yet another historic decision from the Supreme Court. Is it historic? I don't know. It seems like a big deal. It is a very big deal in terms of the human impact. But I mean, frankly, I think the Supreme Court had no business hearing the case. The holding of today's decision is that the Trump administration's decision to end the DACA program, a program that protects several hundred thousand undocumented immigrants who came to the United States as children, that that rescission of that program is invalid because of a paperwork error. Oh. Because the Trump administration did not file the right kind of memo when they decided to

end the program. So the Supreme Court just said, hey, you guys didn't dot your I's and cross your T's? Pretty much. What they said is that whenever an executive branch agency wants to implement a new policy, even if it's a policy that they're allowed to do, they have to explain their decision why. And they have to provide a pretty full explanation of why they did what they did. And the Supreme Court just looked at the memo that the Trump administration wrote explaining why it wanted to get rid of DACA and said,

this isn't good enough. You didn't explain why you're going to take nearly 700,000 people and you're going to suddenly make them subject to deportation. You didn't explain why all these people who have relied on the fact that they have DACA status, who have gotten married, who have gotten jobs, who have gotten degrees, all these people who are paying potentially billions of dollars in taxes, you did not adequately explain why you're going to take this away. And I will note, because this is very important, this doesn't mean that DACA is safe. If the Trump administration does its homework properly the next time, they can still get rid of DACA. But for the meantime, DACA stands basically because

of incompetence, because the Trump administration didn't do what it needed to do to explain its decision. And beyond that, this still wasn't a unanimous decision. This wasn't 9-zip. This was 5-4. So clearly there's more here to unpack. So let's unpack, starting with just winding back a little bit. So DACA is the Deferred Action for Childhood Arrivals program that started under the Obama administration. What happens when Trump comes to office? So a lot of this goes back to 2016. In 2016, the Supreme Court heard a case involving a program called DAPA, and then an expansion of the DACA program, which were efforts by President Obama to allow a larger group of undocumented immigrants to live in the country and to continue to work here. This was after Scalia's death, so the Supreme Court had only eight members,

and the court split evenly. And we're pretty sure it was along party lines with all of the Republicans saying that it had to fall and all the Democrats saying that Dapa could stay. And so a lot of people feared that now that there's a Republican majority on the Supreme Court, there would be five votes to say that DACA, which is very similar to DAPA, also had to fall. What wound up happening instead is at least the majority just didn't go there. The majority relied entirely on this extraordinarily narrow ground that, well, the Trump administration didn't file the right paperwork. So if they want to get rid of DACA, they have to go back and file the correct paperwork.

The thing that stood out at oral argument is that Roberts, who is the George W. Bush appointee who crossed over to vote with his liberal colleagues in this case, at oral arguments, he seemed really concerned that DACA might be illegal. He seemed to think that it would give the president too much power if the president had the power to create the DACA program in the first place. And so I think there was legitimate fears that Roberts was going to go the other way, and potentially that he might strike down DACA altogether forever. Joe Biden can't bring it back forever. And what happened instead, of course, is that Roberts didn't do it. He decided to see the case narrowly. And so this question of whether DACA is legal in the first place

still remains an open question that has not been resolved by the Supreme Court. What about the dissenters here? I'm guessing, what, Kavanaugh, Gorsuch, Alito, and Thomas. Why were they not concerned that this wasn't the right paperwork, that the I's weren't dotted and the T's weren't crossed? So there were several different dissents. The primary dissent was written by Justice Thomas. And Thomas basically said this has always been illegal. DACA couldn't exist in the first place. So it's an absurdity to say that Trump couldn't get rid of a program that has always been illegal. Kavanaugh wrote a separate dissent where he took, I guess, a more moderate view. What Kavanaugh said

is, look, the fact that basically he said the fact that we would strike this down over a paperwork error is silly. So, you know, he seemed to think that there weren't strong reasons why the administration should have to provide the full explanation that the majority demanded. Alito had like a one page dissent where he said, it's bad that this case has been pending for a long time, and it started with a single district court handing down a decision, and that, you know, basically it's bad that while this case was in limbo, the Trump administration wasn't able to do anything.

Where does this leave dreamers for the time being, the people who this program was created for? The answer is it leads them in a pretty precarious place. So again, the holding of the Supreme Court today was that the Trump administration didn't file the right paperwork. And they could potentially file the right paperwork tomorrow. And if they do file the right paperwork tomorrow, it's likely that the court's going to say, yeah, that's fine. I mean, the court said explicitly that Trump does have the power to get rid of DACA if he wants to. He just has to do it the right way. Now, if the Trump administration decides that it wants to take a second crack at getting rid of DACA, it's likely there's going to be another round of litigation. There could be new injunctions from lower courts, and those injunctions could potentially push this until past the election.

And so maybe it becomes moot if Donald Trump is no longer president in a year. But for as long as Donald Trump is president of the United States, he can try to get rid of DACA and there's a good chance he'll succeed. And even if he doesn't try to get rid of DACA, again, the question of whether DACA was legal in the first place, the question of whether President Obama had the power to create DACA has not been resolved by the Supreme Court. So there is still a danger that the Supreme Court will turn around and strike down DACA because they say that DACA itself is illegal.

So what's the president said about this? If this all comes down to Donald Trump right now, has he weighed in on the decision from the Supreme Court? He sent out a tweet where he said that he doesn't think that the Supreme Court likes him very much. And like, I actually think he's on to something. I mean, I don't think it's that the justice personally disliked Donald Trump is the explanation for this. But I think that Chief Justice Roberts, I think what sets him aside from the other four Republican appointees on the court is that Roberts cares about procedural regularity. He believes that

things need to be done in a certain way. And we saw this last term in the census case, and we saw it again this term in the DACA case, that when the administration is incompetent and it doesn't follow the proper paperwork requirements, it doesn't provide a proper explanation for what it's doing, Roberts is willing to say, because you didn't follow the procedural rules correctly, we're not going to let you do what you tried to do. What comes next for the dreamers after a quick break? I'm Sean Ramos for him. This is Today Explained.

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charge. BetMGM operates pursuant to an operating agreement with iGaming Ontario. Nicole Nerea, you cover immigration for Vox. When President Obama created the DACA program in 2012, he said that it wasn't a permanent fix. What is the permanent fix here? So for the better part of almost two decades now, lawmakers have been trying to get the DREAM Act passed, and that would offer permanent protections to DREAMers, offering them a path to citizenship for the most part. And it's been sort of the subject of contentious legislative debate for years, but never really mustered enough support to pass. It was part of a big legislative package in 2013. It was supposed to

be a massive immigration reform bill, but that failed in Congress. And even though public support remains really strong for the DACA program and for DREAMers, it just hasn't been able to get passed in Congress. How strong is public support for DACA, for DREAMers? It's pretty overwhelming among all different sections of voters. Even almost 70 percent of Trump voters support DREAMers and don't want them to be deported. But unfortunately, Republicans often want to use DREAMers as a bargaining chip to kind of beef up border security and enact some restrictionist immigration agendas. So whenever the DREAM Act has sort of come up in Congress, they've always attempted to sort of tack on funding for President Trump's border wall, for example, leaving the negotiations kind of stalled. I mean, the president is currently

beefing up border security and reducing drastically immigration into the United States. Has that neutralized the issue of DREAMers at all? It doesn't seem to because I guess Republicans know that Democrats really want these protections for DACA recipients. And it is one of the few issues on which there is some sort of bipartisan consensus. So they know that now controlling the Senate, they can sort of use these dreamers as a bargaining chip to enact broader restrictions on immigration just because this proposal is so widely popular. As Ian sort of explained in the first half of the show, President Trump now has a very clear idea of how exactly he can get the Supreme Court to rule in his favor on DACA. Do we have any idea

if he'll pursue that? Do we know what exactly he's been up to on immigration lately and what that might suggest for what he might do now that we have this decision from the Supreme Court? So Trump just tweeted this morning, actually, that he is asking for a legal solution on DACA, not a political one. And because the Supreme Court is, quote unquote, not willing to give him one, he now wants to start the process all over again. It's very unclear what that means, whether he might be considering issuing an executive order or having the Department of Homeland Security put out a memo or even going through the rulemaking process to terminate DACA. But the thing is, that process could take a long time and possibly extend far

beyond the presidential election or the inauguration in January 2020. But the president hasn't concluded that maybe it's time to actually pass legislation to get the DREAM Act codified into the law. I mean, I think he's sort of left that up to Senate Republicans. And Mitch McConnell has said that he doesn't want to bring any legislation to the floor. There are circumstances under which I and others would be happy to support that. But we need to do more than that. You know, there's some genuine fixes on the legal immigration side and on the illegal immigration side that need to be addressed. He's sitting on right now what's called the Dream and Promise Act, and that was a House Democrat-led proposal. But they passed that bill now almost a year ago, and he has said he doesn't want to bring it to a vote. So at this point, it's stalled in the Senate, and the ball is kind of in

Mitch McConnell's court. And just more concretely, if you're a dreamer in the United States right now and you run into ICE somewhere, are you protected or are you in some place of legal limbo where you could get deported? No, ICE can't deport DACA recipients now because they do have legal status. If Trump is eventually able to go forward with ending the program, that means that their legal status would expire or terminate. And then, only then, would they be potentially eligible for deportation. And the Trump administration has made clear that if that's the case, they do intend to deport DACA recipients. It's not even clear, though, how the Trump administration could carry out that agenda just because immigration

enforcement resources are already overstrained. Trump is already enacting restrictions on the border and beefing up border security in a way that's really monopolizing their resources. So this is a threat that the Trump administration has made. But even if it comes to pass that DACA is eliminated, it's not clear how just at least in practice, they would be able to carry out deportations on a mass scale. What about all the people who are applying for DACA, people who are trying to become dreamers? So it's still an open question what happens to all these people who would qualify for the DACA program. There's almost 66,000 of them who have been waiting to apply since 2017

when new applications to the program were shut down amid litigation. So it's likely, or at least some legal experts are saying that they should be able to apply for those protections now. And the Attorney General of California, Xavier Becerra, has said that he intends to fight for that. So hopefully the program will become open to new applications and those people who were previously shut out will be able to get protection. It feels like at this point, limbo might be the only setting that the dreamers know. Where does this decision today leave them exactly? Is it exactly where they were yesterday? It definitely is cause to celebrate,

and I know a lot of dreamers are floored and surprised by this decision. It definitely gives them some assurance, at least for the immediate moment, that they will maintain their legal status, that they won't lose their jobs because their work authorization is tied to their legal status, and that they will be able to remain in this country that is, for many of them, the only country they've ever known for the immediate future. But they know that this isn't a permanent fix and that Trump can still move forward with ending the program, especially if he gets reelected. So that's why they're really pushing for permanent protections enshrined in law through the Dream and Promise Act or some other Dream Act adjacent legislation that would give them a path to citizenship.

Nicole, thanks so much for your time. Appreciate it. Thanks.