There was also discussion of the Dreamers' reliance on Trump's statements that they would be protected. Trump praised the Dreamers in February 2017, calling most of them "absolutely incredible kids." He promised, "We are gonna deal with DACA with heart."
Last fall, Trump tweeted, "Does anybody really want to throw out good, educated and accomplished young people who have jobs, some serving in the military? Really!"
When Sessions announced that DACA would be repealed, Trump delayed enforcement for six months, giving Congress time to act to protect the Dreamers. But immigration reform has eluded Congress for years.
"There's a whole lot of reliance interests that weren't looked at, including ... the current president telling DACA-eligible people that they were safe under him and that he would find a way to keep them here," Sotomayor noted. But the administration's position is tantamount to "I'll give you six months to destroy your lives," Sotomayor said.
Roberts told Olson, however, "the whole thing was about work authorization and these other benefits. Both administrations have said they're not going to deport the people. So, the deferred prosecution or deferred deportation, that's not what the focus of the policy was."
When questioning Michael Mongan, an attorney for the state challengers, Roberts mentioned the 2016 case in which he voted with right-wing justices to block another Obama order, Deferred Action for Parents of Americans (DAPA). Since Scalia had just died, the case deadlocked 4 to 4, leaving in place a Fifth Circuit Court of Appeals decision ending DAPA. "Look," Roberts said, "I've got a decision from the Fifth Circuit that tells me this is illegal, it's been affirmed by the Supreme Court by an equally divided vote."
In 2017, Elaine Duke, acting director of the DHS, issued a cursory memo announcing the end of DACA. It included no policy reasons. The following year, Kirstjen Nielsen, the new DHS director, issued another memo affirming the Duke memo and stating policy reasons.
Breyer cited "a foundational principle of administrative law that a court may uphold agency action only on the grounds that the agency invoked when it took the action," concluding therefore that the court should only consider the Duke memo. By contrast, Kavanaugh invoked the Nielsen memo, which he said contains "sound reasons of enforcement policy to rescind the DACA policy."
Ginsburg called the Nielsen memo "infected" by the view that the program was illegal, arguing that Nielsen would not necessarily have come to the same conclusion if there had been "a clear recognition that there was nothing illegal about DACA."
Roberts Will Likely Be the Swing VoteRoberts, who cast conflicting votes in two recent immigration cases, is the wild card here. Together with the four other right-wing justices, he provided the fifth vote to uphold Trump's Muslim Ban. But he sided with the four liberals to halt Trump's use of the citizenship question on the 2020 census, writing for the majority that the government's stated reason for including it was "contrived."
Roberts wrote, "Altogether, the evidence tells a story that does not match the explanation the [Commerce] Secretary gave for his decision." He could adopt the same reasoning in the DACA case and agree with Olson and Mongan that the case should be sent back to DHS to determine the actual cost of ending DACA and provide a reasoned legal analysis.
The chief justice must be mindful of the legacy of his court, which would include stripping DACA protection from nearly a million members of society if he votes with the right-wing justices.
The Supreme Court will announce its decision by the end of June 2020.
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