DACA – SCOTUS Oral Argument Tomorrow Department of Homeland Security v. Regents of U. of Calif.

Tomorrow morning, the U.S. Supreme Court will hear oral argument on whether President Trump has the power to undo the Obama Administration’s illegal amnesty program known as Deferred Action for Childhood Arrivals (“DACA”).

Our firm filed four amicus briefs supporting the Trump Administration at various stages of the DACA litigation, our most recent brief having been filed on August 26, 2019 on the merits in the U.S. Supreme Court on behalf of Citizens United, Citizens United Foundation, and The Presidential Coalition, LLC, available here.

The topics addressed in our brief were that: (i) the Trump Administration’s decision to end DACA was not judicially reviewable; (ii) the Trump Administration decision to rescind was lawful under the Supreme Court’s 1943 decision in SEC v. Chenery; and (iii) the original DACA policy itself was unlawful, but even if it was lawful, was lawfully rescinded.

Although the briefing by the parties focused on whether the Trump Administration properly rescinded the DACA policy, our hope is that the Court will grapple with the question whether Obama’s original DACA policy was illegal. Since there is an extremely strong case that DACA was unlawful from the beginning, it would be amusing to see how the anti-Trumpers on the Court develop an argument to prevent Trump from rescinding it.

We reminded the Court that, after failing to persuade Congress to pass the DREAM Act, and despite repeatedly declaring that he did not have authority to act without legislation,Obama took matters into his own hands in 2012 and unilaterally implemented DACA – which permits a broad swath of illegal aliens to remain in the United States in violation of federal immigration laws. We explained to the Court that the lower court judges were wrong in concluding that the original DACA policy was lawful, and if the Court agrees that DACA was not lawful, then, the lower court injunctions must be dissolved. First, DACA is an impermissible exercise of Congress’s power to legislate, thus violating the constitutional separation of powers. Only Congress has the legislative power to pass or amend laws. Second, DACA is a violation of the Take Care Clause – the President’s duty to take care that the laws of the United States are faithfully executed. President Trump’s rescission of DACA is an attempt to restore federal policy to one of enforcing the constitutionally enacted federal immigration laws.

Although this case should be decided unanimously on the law in favor of the President, like most politically charged questions, the Court is likely to divide 5-4 along political lines.

The Supreme Court’s eventual decision in this case will have significant ramifications as, up to this point, the lower federal courts have attempted to thwart many of the Trump Administration’s efforts to fight illegal immigration and protect our nation’s borders — one of the primary reasons that Trump was elected in 2016.

President Trump’s border protection policies have been under contstant attack. It started with immediate challenges to the travel bans shortly after inauguration (regarding which we filed eight briefs supporting the Trump Administration), continues through these DACA cases, and now onto other numerous matters. Every immigration-related action that the President takes is met with a flurry of litigation filed in federal district courts, such as San Francisco, New York, Chicago, and Baltimore, known to be dominated by Obama and Clinton judges. Now pending is litigation against:

  • the Public Charge Rule issued by DHS on September 21, 2018 prohibiting admission of immigrants likely to become a public charge;
  • the Census Bureau Collection of Citizenship Data under Executive Order of July 11, 2019;
  • the suspension of entry of immigrants who may financially burden the healthcare system under Presidential Proclamation of October 4, 2019; and
  • the House of Representatives’ suit to stop funding construction of the border wall.

In every case, it seems, there is at one or more Obama or Clinton Judges willing to issue a national injunction to preserve the Obama heritage. So the DACA case is like “The Empire Strikes Back” — the middle of the saga.

For anyone who likes to read, here are links to all four of our DACA briefs:

DHS v. Regents (SCOTUS Petition 2/2018)
Vidal v. Nielsen (2d Circuit 3/2018)
DHS v. Regents (SCOTUS Petition 12/2018)
DACA – DHS v. Regents (SCOTUS Merits 8/2019)

William J. Olson, P.C., 370 Maple Avenue West, Suite 4, Vienna, VA 22180-5615


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