The Supreme Court is scheduled today to hear arguments about the future of DACA. That it has to address this issue at all is bizarre.
The Court, after all, is where the country goes to resolve its biggest and most intractable disagreements. But the Deferred Action for Childhood Arrivals (DACA) program — which protects many young migrants from deportation — is something Americans of all stripes actually support. As many as nine in 10 poll respondents say the so-called "DREAMers" should have a path to citizenship. Crucially, that is a view shared by most Republicans, even though President Trump announced the end of the program in 2017. DACA is popular.
So it shouldn't be that difficult to save the program, right? Bipartisan majorities of Congress — the Democratic House and the Republican Senate — could vote to make DACA permanent. In the face of such popular majorities, the president might sign it. (He has occasionally signaled a willingness to do so in exchange for border security guarantees.) The DREAMers could stop worrying about their future and settle down, secure in their American-ness, to helping build this country that they claim as their own.
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That hasn't happened. And while it would be nice if the Supreme Court could just step in and fix that issue for everyone — assuming that the newly conservative majority on the Court is inclined to do so — the truth is that DACA will probably remain an endangered program no matter what happens today.
Why?
The case before the Court turns on a pretty narrow question of law. The debate isn't whether Trump had the right to bring DACA to an end, but whether his administration gave the wrong reason for doing so. The administration said that former President Obama overstepped his authority when he created DACA by executive order in 2012, and that the White House had no legal choice but to end the program.
The Supreme Court might agree. Or it could decide — as lower courts have — that Obama had the authority to create DACA, and that the Trump administration's reasoning for ending the program was based "on an erroneous view of what the law required." If that happens, the Trump administration would probably be given the chance to go back to the drawing board and come up with a proper reason for ending the program. Still, if Obama had the discretion to create the program, there is little question that Trump has the authority to pull the plug — what a president can make, a president can unmake — even if he didn't quite go about it properly the first time around.
And Trump probably would choose to end DACA again. While the president has suggested many times that he would like to see DREAMers stay in the country, given a choice between the DREAMers and his anti-immigrant base, Trump has consistently sided with the base. Remember: He shut the government down at the beginning of this year after conservative activists like Ann Coulter mocked him for failing to get funding for a border wall from Congress. As long as Coulter and her allies continue to oppose a DREAMer path to citizenship — or even a DREAMer path to simply avoiding deportation — Trump is likely do so, too.
It is at this point that Congress could step in and do the right thing. But the legislative branch's failures on immigration in general — and saving the DREAMers, in particular — are legion. The House and Senate have been trying to pass a path to citizenship for the young migrants for nearly two decades, going back to the presidency of George W. Bush, only to be blocked by filibusters and the unyielding opposition of a small-but-determined band of anti-migration legislators. Obama created DACA by executive order, but he knew that the fix was temporary: His intention was always that Congress would act to make the program more permanent. It hasn't, and there is little reason to believe that will change in the near future.
Which means governance in this country is largely broken. It cannot provide legislation desired by most of its citizens. It cannot provide a path forward for DREAMers. All it can offer is temporary fixes and permanent anxieties for the people who need action. Today's Supreme Court hearing won't provide a solution to those deep-seated issues. The best it might do is start the cycle of failure anew. Americans deserve better.
