Trump administration tells Supreme Court it ‘owns’ termination of DACA program

WASHINGTON - The Trump administration told the Supreme Court Tuesday that it has decided that the program that shields from deportation young undocumented immigrants brought to the United States as children should end regardless of its legality, and there would be no point in asking it again to come up with additional justifications.

"We own this," Solicitor General Noel Francisco told the court during a more than 80-minute oral argument over the Deferred Action for Childhood Arrivals (DACA) program, which President Barack Obama authorized through executive action in 2012 to protect law-abiding immigrants brought to the United States as children.

His arguments seemed to resonate with the court's dominant conservatives.

Nearly 700,000 people are enrolled in the program, which provides a renewable grant of protection from deportation and carries with it work authorization. But Francisco said the Department of Homeland Security disagrees with providing such a large classification of people with immunity from laws that usually would demand their removal.

Lower courts have said that President Donald Trump's decision in 2017 to terminate the program was based on a faulty belief that the program was legally and constitutionally defective and that the administration has failed to provide reasons for ending it that courts and the public can judge.

Francisco disputed that. While the first memo outlining termination of the program relied exclusively on the view that the program was illegal, he said, a subsequent agenda memo invited by a judge during the litigation supplied other reasons. There would be no point in requiring the administration to repeat that step, he said.

Trump has said it is necessary for the Supreme Court to agree with the administration's view to get congressional Democrats back to the negotiating table to come up with a more permanent solution.

In general, the court's liberals seemed highly skeptical of the administration's actions, while the conservatives seemed open to the idea that it had the power to terminate the program. The court's decision is likely to take months.

Justice Sonia Sotomayor mentioned Trump directly, and highlighted the president's conflicting statements about DACA recipients.

At one point, she said, Trump told the so-called "dreamers" that "they were safe under him," she told Francisco. Then, abruptly, the administration said it would be ending the program in a short time, giving them "six months to destroy your lives."

Other liberal justices also wondered whether the government has more of a responsibility to say why it was ending a program that, according to dozens of briefs in the case, universities, cities, employers and the recipients themselves have come to rely on.

But Francisco said even Obama described the program as a temporary, "stopgap" measure. Recipients must reapply every two years, he said, or the benefits expire on their own.

Washington lawyer Theodore Olson, arguing on behalf of a coalition of businesses, civil rights groups, universities and individuals, said DACA was different from most programs, because the government "invited them into the program." Olson, a former solicitor general under President George W. Bush, said the recipients have identified themselves and made their deportation easier.

Chief Justice John Roberts said deportation was unlikely - the government wouldn't have the resources to undertake such a mass action. The real issue, he said, was work authorization.

The Trump administration moved to scuttle the DACA program in 2017 after Texas and other states threatened to sue to force its end. Then-Attorney General Jeff Sessions advised the Department of Homeland Security that the program was probably unlawful and that it could not be defended.

Sessions based that decision on a ruling by the U.S. Court of Appeals for the 5th Circuit, which said that another Obama program protecting immigrants was beyond the president's constitutional powers. The Supreme Court deadlocked 4 to 4 in 2016 when considering the issue.

Olson said that advice from Sessions gave the department no other option but to end the program. The court should require the administration to start over, and give reasoned arguments for why it is in the country's best interests to end the program.

But Justice Neil M. Gorsuch, who said the "sympathetic facts" about DACA recipients "speak to all of us," wondered what would be the point. "What more would you have the government say?" he asked Olson.

Justice Brett Kavanaugh also said a subsequent memo from then-DHS Secretary Kirstjen Nielsen seemed to list reasons other than Sessions's view that the program was illegal.

But Justices Elena Kagan and Ruth Bader Ginsburg said a presumption about the program's illegality provides the backdrop for all of the administration's actions.

Lower courts have rejected Sessions' view. They have kept the program in place, restricting new applicants but allowing those already enrolled to renew their participation. California Attorney General Xavier Becerra, D, who is among those fighting the administration's decision, said that about 400,000 two-year renewals have been approved since January 2018.

The program is open to those who were brought to the United States before they were 16, have lived here at least five years, paid for and received a background check and have a clean legal record. The program does not provide a path to citizenship, but does allow recipients to work legally, and renew their two-year protection from deportation.

A government study found more than 90% of recipients, who now are in the 20s and 30s, are employed, and about half are students.

The Trump administration, which usually argues for broad executive power, in this case is arguing that the program is flawed, and could not be defended against challenges from states that want to end it.

The Supreme Court's somewhat reluctant review of the DACA program - it waited for months before accepting the case - meant that, for the third consecutive year, the high court will pass judgment on a Trump priority that has been stifled by federal judges - this time in a presidential election year and in a case with passionate advocates and huge consequences.

The Supreme Court ended its term in June by putting on hold the Trump administration's plan to put a citizenship question on the 2020 Census. In 2018, it narrowly approved the president's travel ban on arrivals from a handful of mostly Muslim countries.

The consolidated cases the court heard Tuesday are Department of Homeland Security v. Regents of the University of California, Trump v. NAACP and McAleenan v. Vidal.