U.S. Supreme Court Issues Ruling that Favors DACA for Now

The Supreme Court ruled 5-4 on 18 June holding that the Trump administration’s termination of DACA in 2017 was unlawful.

The Court ruled, in a 5-4 decision that the administration’s termination of the Deferred Action for Childhood Arrivals (DACA) program violated the Administrative Procedures Act and must be vacated. Chief Justice John Roberts wrote the majority opinion and was joined by Justices Ruth Bader Ginsburg, Stephen Breyer, Elena Kagan and Sonia Sotomayor. Roberts wrote that, rather than questioning the legality of the program, the dispute “is instead primarily about the procedure the agency followed in doing so.” It was found that the Department of Homeland Security (DHS) did not provide an adequate reasoning for the DACA program termination, overlooking key policy points such as “what if anything to do about the hardship of DACA recipients.” This ruling sends the matter back to DHS, and it is unknown whether the administration will try to end the program again through the rulemaking process.

Then-President Barack Obama created the DACA program on 15 June, 2012 by Executive Order after the Development, Relief, and Education for Alien Minors (DREAM) Act did not pass in Congress. In 2017, the Trump administration ended the program, igniting a legal battle that went all the way to the U.S. Supreme Court.

DACA recipients, often called “Dreamers,” are individuals who came to the U.S. before their 16th birthday at least five years before 2012. According to the National Immigration Forum, DACA recipients came from approximately 150 different birth countries. The average age DACA recipients when they arrived in the U.S. was seven and they have lived in the U.S. an average of 20 years. DACA protects them from deportation and provides an opportunity for a two-year work authorization with possible renewal. DACA recipients are required to work, seek education, or serve in the U.S. military.

Then-Attorney General Jeff Sessions issued a memo in 2017 arguing for the rescission of DACA on the grounds that it was unconstitutional for President Obama to create the program through Executive Order. The Court’s decision contradicts it.

Many in the business stakeholder community, including Worldwide ERC®, continue to recommend that a legislative solution is the best solution for the Dreamers, given that the administration may seek to again terminate the program and they could be successful if they comply with the Administrative Procedures Act.

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How This Impacts Mobility

The decision provides an immediate benefit to Dreamers and employers during COVID-19, requiring DHS to continue to accept applications to renew DACA applications. This is important for critical industries like healthcare where DACA talents are on the front lines of the pandemic. However, what remains unknown is if DHS will again attempt to terminate the program through the rulemaking process before the U.S. November elections. Worldwide ERC® will continue to monitor any developments to keep you up-to-date. If you have questions please reach out to Worldwide ERC®’s Vice President of Government Affairs, Rebecca Peters at rpeters@worldwideerc.org.