The Trump administration violated the law when it decided in 2017 to phase out the Deferred Action for Childhood Arrivals program, lawyers supporting the Obama-era program told the Supreme Court on Friday.
“The Executive can change course on enforcement policies” lawyer Theodore Olson argued in new legal briefs, “but not in arbitrary and unreasoned ways.”
The briefs come as the Supreme Court will hear arguments in the case on November 12. As things stand, lower courts have issued two nationwide injunctions forcing the government to continue to allow renewals in the program. DACA has become a focal point in the debate over Trump’s proposed wall along the US-Mexico border and efforts to crack down on immigration. A decision siding with the administration could strip protections for nearly 700,000 so-called Dreamers in a case that will come down in the heat of next year’s election.
At issue in the case is not the legality of the program that protects thousands of undocumented immigrants who came to the US as children, but how the government chose to wind it down. Olson said the government failed to “consider the costs of its decisions, including loss of work authorization for 700,000 DACA recipients.”
Back in 2017, the Trump administration announced it was going to phase out DACA, which it said had been created “without proper statutory authority.”
The move was immediately challenged in court by the University of California, a handful of states and DACA recipients who argued that the phase-out violated the Administrative Procedure Act, a federal law that governs how agencies can establish regulations.
Courts agreed and issued nationwide injunctions that allowed renewals in the program to continue.
“We conclude,” wrote a panel of the 9th Circuit Court of Appeals, that the rescission of DACA “is arbitrary, capricious or otherwise not in accordance with law.”
The Trump administration appealed the decision to the Supreme Court, and last June, the justices agreed to hear the appeal for the upcoming term.
“At best, DACA is legally questionable,” Solicitor General Noel Francisco told the justices in briefs last summer. “At worst, it is illegal.”
Francisco stressed that the executive branch was within its authority to phase out the program and that the lower courts “erred” in “second-guessing” the Department of Homeland Security’s “entirely rational judgment to stop facilitating ongoing violations of federal law on a massive scale.”
In the briefs, Francisco argued that the decision to terminate the program was reasonable because the Department of Homeland Security had “serious doubts” about its legality. He said the decision was “more than justified by DHS’s serious doubts about the lawfulness of the policy and the litigation risks in maintaining it.”
CNN’s Devan Cole contributed to this report.