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The Supreme Court Will Hear 3 DACA Cases Today. Here’s What’s at Stake

November 12, 2019, 12:00 PM UTC

In 2012, President Barack Obama sent a political lifeboat to roughly 800,000 undocumented immigrants brought to the U.S. as children. The Deferred Action for Childhood Arrivals Program, or DACA, provided these individuals with a renewable work permit, protection from deportation, and other benefits, as long as they met certain requirements. While it did not provide them with lawful status, DACA allowed thousands of people to build a life that was previously unimaginable.

Five years later, President Donald Trump repealed DACA, arguing it was illegal. He initially pushed for legislative action, but lawmakers turned to the courts for a solution when dealmaking came to a standstill.

The Supreme Court is scheduled to hear three lawsuits related to DACA on Tuesday. Justices will be evaluating all three in a consolidated case to answer two questions: whether Trump’s decision to end DACA was legal, and whether the decision is something that courts can review at all. A final ruling is not expected until spring or summer 2020.

As of now, immigrants currently under the system can renew their protected status, but no new applications are being accepted. Since the height of the program, the number of individuals participating in DACA has dropped by 140,000, said Jorge Loweree, policy director at the American Immigration Council. Some of these people moved to a different legal status (through marriage, asylum, etc.), but others simply didn’t renew their program application.

“Many of them were certainly scared and reluctant to continue participating in the program,” Loweree told Fortune. “There’s been a great deal of uncertainty around the program: whether or not it would continue, or if it would be revoked, and in particular what the administration would want to do with the information that they had been provided by DACA recipients over the years.”

The hearing Tuesday will lead to a decision that will affect hundreds of thousands of people living in the U.S. The average DACA recipient arrived in the U.S. at age six, said Loweree. Per the qualifications of the program, all have lived in the U.S. for at least 12 years now, many for much longer. For many DACA recipients, the U.S. is the only home they know.

The prosecution in each case argues that the Trump administration’s Department of Homeland Security violated the Due Process Clause of the Fifth Amendment⁠, which states no one shall be “deprived of life, liberty or property without due process of law.” They also allege the administration violated the Administrative Procedure Act and the Regulatory Flexibility Act—both of which govern how federal agencies create and amend regulations—by neglecting to follow the laws’ public comment and analysis procedures.

When the Trump administration announced the end to DACA in 2017, it did so under the reasoning that the program is likely illegal due to its similarities to Expanded DACA and Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA), two programs that were blocked by the courts under the Obama administration.

In Department of Homeland Security, et al. v. Regents of the University of California, et al., one of the cases to be heard Tuesday, the the prosecution argues that since DACA is different from DAPA, the purported illegality of one is not adequate grounds to remove the other.

“The two programs were governed by different sets of rules, applied to different individuals, and conferred different benefits,” reads the complaint. “Therefore, the alleged illegality of DAPA does not justify the rescission of DACA, and Defendants’ failure to recognize the many differences between the programs renders their decision unreasonable.”

The University of California brought this suit in defense of its students and staff living under DACA protection. These Dreamers “face expulsion from the only country that they call home, based on nothing more than unreasoned executive whim,” reads the complaint.

The two other cases to be heard by the Supreme Court are Kevin K. McAleenan, Acting Secretary of Homeland Security, et al. v. Martin Jonathan Batalla Vidal, et al; and Donald J. Trump, President of the United States, et al. v. National Association for the Advancement of Colored People, et al.

The first case‘s prosecution includes several individuals and an immigrant rights organization who argue that the termination of DACA will cause “imminent and devastating harm.” At least one of the individuals named has U.S.-citizen children. The NAACP brought the second suit in defense of people of color protected by DACA, a demographic that accounts for roughly 95% of all Dreamers.

The defense argues in a court filing for McAleenan v. Vidal that DACA is illegal, “and at a minimum legally questionable.”

Moreover, the government says the decision to rescind DACA isn’t reviewable under the APA. It says DACA is “a purely discretionary nonenforcement policy,” and since the decision to rescind it was made for more than just legal reasons, it falls outside the scope of the APA.

While the agency did want to avoid a potential lawsuit challenging what it believed to be an illegal policy, it also wanted to maintain confidence in the work and message of the DHS. The defense wrote in the court filing that the DHS “seeks to send a strong, consistent message that illegal immigration will not be tolerated,” and policies like DACA “undermine the clarity of that message.”

Mayra Joachin, a staff attorney at the National Immigration Law Center and counsel on McAleenan v. Vidal, said they are optimistic that the Supreme Court will side with DACA recipients.

“We have seen various courts declare that the government’s decision to end DACA was unlawful,” Joachin told Fortune. “We feel strongly that the government’s position to end the program was done unlawfully.”

The case could have impacts reaching outside DACA as well. The Justices’ stance on the other question posed—whether the administration’s decision to rescind DACA is something that courts can review at all—will decide how much oversight government agencies are subject to.

“We’re hopeful that the court will recognize that in this instance the government’s lack of explanation and the thin administrative record that they’ve provided in this case is insufficient,” said Joachin. “We really need to hold the government accountable to ensure that whenever it takes any actions, whenever agencies take any actions, they do so by meeting the requirements of the APA.”

If, however, the Supreme Court decides the decision to rescind DACA is unreviewable, that leaves the door open for a future administration to reimplement the program. In the meantime, however, hundreds of thousands of lives would be thrown into chaos.

“There’s a great deal at stake,” said Loweree. “The program has been a success. It’s allowed around 800,000 people who came to the US as kids to live, work, and study here without the constant fear of deportation.”

Allowing the program to be canceled could have “dire” consequences, Loweree continued. Since the DACA program has allowed recipients to take out loans, pursue higher education, and build lives, “the impacts of simply revoking the program would be felt not only by individual DACA recipients, but potentially by our educational institutions and our local economies as well,” he said.

A report from the Immigration Initiative at Harvard published this month found DACA “has been enormously beneficial to communities, the U.S. economy, and educational institutions.” In its study of more than 400 DACA recipients, Harvard found the program increased access to education and meaningful careers, allowing these individuals to better support their families and communities.

Another study published shortly after Trump repealed DACA determined that eliminating the program could make the U.S. lose up to 700,000 jobs and $460.3 billion in economic output over the next decade.

The majority of Americans—both Republicans and Democrats—support DACA recipients. According to a Gallup poll, 83% say these individuals should be given a path to citizenship if they meet certain requirements.

“Frankly, it would be short-sighted [to rescind DACA] given what we’ve come to learn,” said Loweree. “Namely that DACA recipients are a particularly capable and driven group of young people who want nothing more than a fair shot at their version of the American dream.”

Whatever the eventual impact of the hearing, Tuesday “is going to be a difficult day for DACA recipients,” said Joachin.

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