The Supreme Court of the United States announced on Friday that it will use a fake controversy manufactured by the Trump administration as a vehicle to review Deferred Action for Childhood Arrivals (DACA) — an Obama-era program protecting many undocumented immigrants who entered the United States as children.
While lower courts held that the administration did not follow proper procedures when it chose to wind down DACA, these court decisions were on extraordinarily narrow grounds.
In effect, the lower courts held that the Trump administration’s decision to phase out DACA would be unreviewable by federal courts if the Department of Homeland Security merely drafted a memo offering a policy-based justification for doing so. Instead, the administration’s memo argued that DACA is illegal — a question of law that can be reviewed by federal courts. But there is nothing preventing the administration from producing a new memo today that makes a policy argument. And if the administration did so, the courts would back away.
The DACA cases, in other words, arise out of a fake controversy that boils down to nothing more than the Trump administration’s unwillingness to put a few words on paper. Yet, while the controversy is fake, the long-term implications of the Court agreeing to hear this dispute could be very real.
In 2016, when the Court had eight justices, it split evenly on whether a program similar to DACA is legal. Since then, Trump placed two conservative hardliners on the Court, so there are almost certainly five votes to strike down DACA permanently.
By manufacturing a fake controversy, the Trump administration gave the Court a vehicle it could potentially use to prevent future presidents from creating a DACA-like program. It appears likely, based on the Court’s decision to consider DACA, that those five judges plan to latch onto this vehicle.