H. Lee Sarokin: Americans’ Faith in Law Is at Stake in the DACA Case

As the end of the U.S. Supreme Court Term nears, the future of the Deferred Action for Childhood Arrivals (DACA) policy hangs in the balance.  In Department of Homeland Security v. Regents of the University of California, the Court is weighing whether to uphold the Trump administration’s attempt to rescind DACA.

There is more than just the future of DACA on the line.  As retired U.S. Court of Appeals Judge H. Lee Sarokin writes in The Atlantic “the Supreme Court’s decision in the DACA cases . . . will test the public’s belief that law and justice intersect in America.”   (bold added).  Judge Sarokin later explains his conclusion:

“The effect that revoking DACA will have upon its recipients is not some figment of the imaginations of bleeding-heart liberals, but involves one of the crucial issues in the cases—the reliance by hundreds of thousands of young people on the promises made, the assurances given, and the personal details disclosed that placed them in jeopardy. Although significant numbers are unlikely to be deported if revocation is upheld, that sword of Damocles will hang over all of them, their status in limbo and the benefits once gained now denied.

In the background of this litigation is the question: Why would the current administration want to destroy the lives of close to a million people—and their families and all who need them—who have done nothing wrong, who have contributed so much, and who are necessary to the country’s future prosperity? If the purpose is deterrence, no future children are eligible to participate in DACA, and wasn’t tearing children from the arms of their parents and placing them in cages deterrence enough? Confidence in the justness of law is at stake here.

The Supreme Court has the opportunity in these cases to prove to the country that despite all the hardships that surround us, humanity is not dead, cruelty does not rule the day, and compassion and empathy have not passed from the lexicon.” (bold added).

I agree with Judge Sarokin that the public perception of the U.S. justice system, as well as the very legitimacy of law, are at stake in the DACA case.  Legitimacy concerns and Chief Justice John Robert’s concern with the Court being viewed as a political branch of government contributed to a decision that surprised many Court observers at the end of last Term.  As I wrote in The Conversation last year after the Supreme Court ruled that the Trump’ administration must offer a better explanation for a citizenship question on the 2020 Census:

“On June 27, the last day of the term, the Supreme Court decided Department of Commerce v. New York, a case exploring legal issues surrounding the addition of the question, `Is this person a citizen of the United States?,’ on the 2020 census.

The decision is of great practical importance, as the final numbers generated by the census will affect representation in Congress, allocation of federal dollars and much more. The political implications of the citizenship question made the case politically volatile and controversial.

In an opinion by Chief Justice Roberts, the court chose not to accept what may well be the Trump administration’s pretext for the citizenship question to mask partisan political and discriminatory motives.

As a scholar of immigration law and civil rights, I was not surprised by the outcome. The court decided the case in a way that will help maintain its legitimacy in the future.

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The court’s decision, for the most part, does not state explicitly – which would be unprecedented – that it sought to protect its legitimacy. And it avoids going too far in criticizing the decision to use the citizenship question.

Indeed, the court found that the decision to include the question was not `arbitrary and capricious’ in violation of the law. It simply said that the Department of Commerce’s explanation was not convincing and a rational – not a `contrived’ – explanation would be required.

It is telling that Roberts, who is keenly concerned about the court’s legitimacy, sided with the liberal justices in order to send the case back to the agency.

Roberts, who famously said during his confirmation hearings that a judge’s job is to call `balls and strikes,’ resists the notion that the Supreme Court is a political institution – and did so, I believe, with this decision.”

Similar issues may come into play in the Supreme Court’s deliberations in the DACA case.  The Trump administration claimed that, even though no court had ever so ruled, DACA was unlawful.  As immigration law professors laid out in an amicus brief,  that is simply not the case.  The truth is that Donald Trump made a political choice to end DACA and play to his immigration base.  Reason and deliberation about the reliance and other interests of DACA recipients do not appear to have been factored into the decision-making calculus.  Similar to the Census case, if the Court accepts the administration’s pretext for ending DACA, the belief in the rule of law and the Supreme Court’s legitimacy will suffer.  Watch carefully where Chief Justice John Roberts lines up in this case as, I believe, his vote will determine the outcome.

KJ