The U.S. Supreme Court ruled June 18 the President Donald Trump administration erred in the way – not in the fact – it rescinded a program for certain undocumented immigrants brought to the United States as children.
In a 5-4 opinion, the high court found the administration acted in an “arbitrary and capricious” manner in revoking Deferred Action for Childhood Arrivals (DACA), an Obama-era policy to protect from deportation undocumented immigrants who arrived in this country before their 16th birthday.
Writing for the majority, Chief Justice John Roberts said the dispute in the case is not whether the administration “may rescind DACA. All parties agree that it may. The dispute is instead primarily about the procedure the [Department of Homeland Security] followed in doing so.”
The justices’ reasoning in the decision means the Trump administration or another administration could still end DACA by doing so in a way that gains the Supreme Court’s approval.
Southern Baptist ethicist Russell Moore and others called for Congress to act to solve the problem.
Dreamers, a label that stems from the name of a bill introduced to protect this category of immigrants, “are not an abstraction,” said Moore, president of the Ethics & Religious Liberty Commission (ERLC). “They are people created in the image of God, who were brought here as children by their parents. Their entire lives are at stake right now.”
The justices’ opinion “might address an immediate question of administrative law, but it does not, ultimately, protect our vulnerable neighbors,” he said. “There is no sending these people ‘back’ – in many cases they have no memory at all of the land of their parents’ origin.
“Those who have lived as good neighbors, contributed so greatly to our country, should be protected from the constant threat of having their lives upended. Congress should move immediately to protect our Dreamer neighbors.”
The Evangelical Immigration Table (EIT) called for a legislative fix in a letter sent to Congress after the opinion’s release. In it, EIT leaders – including Moore – asked congressional members “to act quickly and on a bipartisan basis to pass legislation to create a pathway for those who arrived in the U.S. as children and who meet other necessary and appropriate qualifications to earn permanent legal status and, eventually, citizenship.”
Sen. James Lankford, R-Okla., a Southern Baptist, has called for Congress to provide a solution for Dreamers, but he said the Supreme Court’s decision could make it more difficult.
The high court “has returned to Congress an even bigger mess while creating a long-term problem for any President responding to any previous Executive action,” Lankford said in a written statement. Congress “should address DACA in law, but now this decision – and the way it is written – leaves the long-term solutions for DACA recipients even more in limbo,” he said.
Members of Congress proposed the Development, Relief and Education for Alien Minors (DREAM) Act for the first time in 2001. The measure gained reintroduction several times thereafter without being passed.
After more than a decade of congressional failures, President Obama issued an executive order establishing DACA in 2012. The program provided a two-year window of protection from deportation and made participants eligible for permission to work and other benefits. About 700,000 people participated in the program.
In September 2017, Elaine Duke, acting secretary of the Department of Homeland Security (DHS), issued a memorandum rescinding DACA.
In the majority opinion, Roberts said DHS violated the Administrative Procedure Act (APA), which governs the manner in which federal agencies establish and issue rules. The APA requires agency rule-making not be “arbitrary and capricious.”
The 2017 memo from DHS failed to address the legality of “forbearance” – protecting DACA participants from deportation – and therefore was “arbitrary and capricious,” he said.
“We do not decide whether DACA or its rescission are sound policies,” Roberts wrote. “We address only whether the agency complied with the procedural requirement that it provide a reasoned explanation for its action. Here the agency failed to consider the conspicuous issues of whether to retain forbearance and what if anything to do about the hardship to DACA recipients. The appropriate recourse is therefore to remand to DHS so that it may consider the problem anew.”
In dissent, Associate Justice Clarence Thomas said DACA “was unlawful from its inception.”
The majority “erroneously holds that the [DHS] is not only permitted, but required, to continue administering unlawful programs that it inherited from a previous administration,” Thomas wrote.
Joining Roberts in the majority were the associate justices typically considered members of the court’s liberal wing: Ruth Bader Ginsburg; Stephen Breyer; Sonia Sotomayor; and Elena Kagan.
Associate justices Samuel Alito, Neil Gorsuch and Brett Kavanaugh dissented along with Thomas.
In 2011, messengers to the Southern Baptist Convention annual meeting approved a resolution on immigration reform that called for the advancement of the gospel of Jesus while pursuing justice and compassion. The measure urged the government to make a priority of border security and hold businesses accountable in their hiring. It also requested public officials establish after securing the borders “a just and compassionate path to legal status, with appropriate restitutionary measures, for those undocumented immigrants already living in our country.” It specified the resolution was not to be interpreted as supporting amnesty.
At the 2018 annual meeting, messengers again requested reform that secures the borders and provides a pathway to legal status “with appropriate restitutionary measures.” The resolution also calls for “maintaining the priority of family unity.”
(EDITOR’S NOTE – Tom Strode is Washington bureau chief for Baptist Press.)
