The U.S. Supreme Court’s decision blocking the Trump administration’s efforts to rescind Deferred Action for Childhood Arrivals (DACA) provides certainty for both employees benefiting from the program and for their employers. But the decision leaves the door open for a president to try again to rescind the program.
The Court issued the 5-4 decision in Department of Homeland Security v. Regents of the University of California on June 18. Chief Justice John Roberts was joined by Justices Ruth Bader Ginsburg, Elena Kagan, Stephen Breyer, and Sonia Sotomayor. Justices Clarence Thomas, Samuel Alito, Neil Gorsuch, and Brett Kavanaugh dissented.
Jacob M. Monty, an attorney with Monty & Ramirez LLP in Houston, Texas, says the decision means employers can definitely rely on work authorization documents from DACA recipients, often called Dreamers. Before the ruling, employers faced a lot of uncertainty related to whether employees with DACA status faced threat of deportation.
“That is a great win for not only the DACA employees but also for DACA employers,” Monty says.
But the Court’s decision doesn’t resolve the matter entirely. Monty says both sides in the case conceded a president could legitimately rescind DACA. But the Court found the Trump administration didn’t follow the federal Administrative Procedures Act (APA).
Jonathan Eggert, an attorney with Burr Forman McNair in Hilton Head Island, South Carolina, also says the Court’s decision doesn’t say the program can’t be rescinded. It just says proper procedures weren’t followed.
“In fact, the majority opinion lays out a pretty straightforward roadmap for the types of things the administration would need to consider in order to lawfully rescind the program,” Eggert says. He also says employers need to stay tuned.
“Today’s decision was only round one,” Eggert says. “There is always the possibility of another attempt at rescinding the program as well as the implications of pending litigation in Texas. Unlike the Supreme Court case that challenged the Trump administration’s termination of DACA, the Texas case challenges the lawfulness of DACA head on— both on constitutional and other grounds.”
November Election Key to Issue
The good news for both employees and employers is that even if the administration tries again to rescind DACA, the procedures in the APA are strict, and “there’s no way it would be resolved by November,” when President Trump is up for reelection, Monty says.
Elaine C. Young, an attorney with Kirton McConkie in Salt Lake City, Utah, also says the administration could try again to end the program by explaining more clearly its purposes in doing so, but that would take time.
“There is probably not enough time to go through the formal process of eliminating DACA during President Trump’s first term, so the future of DACA may be decided by the election,” Young says. “If Democrats controlled both houses of Congress and a Democrat is in the White House, relief for Dreamers could come in the form of a continuing DACA program, or comprehensive immigration reform that includes a solution for Dreamers, like a path to permanent residence or citizenship.”
So, although the decision is a big relief for employers that thought they would lose their DACA employees this summer, only legislation can provide complete relief for Dreamers, Young says.
“Employers should breathe a sigh of relief for now but be aware the rules may still change and that their employees may still be nervous about that,” Young says. She advises employers that want to voice their support for DACA or Dreamers to contact their congressional delegations and advocate for immigration reform legislation, not just extended executive orders.
Leigh Cole, an attorney with Dinse P.C. in Burlington, Vermont, says the Court’s decision is a relief for employers “at least until the November election, in my view” because “the effort to rescind DACA is back to the starting line.”
“Logistically, it’s unlikely that DACA employment authorization could be retracted with any real-world impact before the election,” Cole says. Even if the administration tries again to rescind DACA, it is now well-established that such efforts are vulnerable to injunctions while litigation challenges the legal basis for a change, she says.
Cole also says the scope and scale of the population protected by DACA, the lack of problems caused for society by DACA, and the unfeasibility of deporting the beneficiaries “all weigh heavily in favor of DACA continuing until Congress addresses the problem in a comprehensive way.”
Unknowns
Although the decision provides many answers, there are still unknowns, Monty says. For example, many people didn’t apply for DACA because they were too young, and it’s unknown whether they can apply now.
Also, the effect of the Court’s decision on advance parole isn’t known. “Advance parole” refers to documentation that may allow—but doesn’t guarantee—a DACA recipient to travel outside the United States and then reenter legally. Monty explains that if a revival of DACA also brings a revival of advance parole, it would be a “huge boon” to DACA recipients married to U.S citizens, since they would be able to rely on their spouse to petition for them to gain lawful reentry.
“Most immigration practitioners were expecting a different result,” Monty says of the Court’s decision. “We were expecting the Court to say DACA was properly rescinded by the Trump administration.”
Tammy Binford writes and edits news alerts and newsletter articles on labor and employment law topics for BLR web and print publications.
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