From the September-October 2020 issue of News & Letters
by Buddy Bell
When, in June, U.S. Supreme Court Chief Justice John Roberts authored a 5-4 ruling on the Deferred Action for Childhood Arrivals (DACA) policy, and when last year he authored the 5-4 ruling that removed a new question asking about citizenship status from the census form, each time he was telling Trump to go back to the drawing board (next time be more thoughtful, deliberate, not so overtly racist). Roberts fears that a miserably failed Trump candidacy might doom Republican senators down the ballot. A Senate with a safe Democratic majority could pose a threat to his stranglehold on the Court.
SUPPORT FOR DACA GROWS
Perhaps Roberts noticed the tens of thousands of people outside the Court on a cold November day in 2019, as oral arguments in the DACA case began. The crowd included 800 high school students from the Washington area who walked out of classes, as well as university students from around the country. Some had been camped out on the steps since the day before. Others spent a week traveling on foot, all the way from New York City. Local radio station WAMU interviewed 23-year-old Brenda Perez, part of the DACA program: “This is really scary. This is really messed up. Everything that I’ve been working for, I could see it right in front of me just going to waste.” Actor and DACA recipient Bambadjan Bamba, who was quoted in the American Prospect, told the crowd: “If we want any chance of moving this political needle, especially with this upcoming election where immigration will be a central issue, [we have to] start telling our stories, telling our truths.”
In April 2020, the Center for American Progress reported that there were about 142,000 DACA recipients working in food-related occupations, 43,000 in healthcare, and 15,000 teachers. Jessica Hernandez, a teacher and mother in Dallas, Tex., told the Dallas Morning News: “I’ve spent almost seven years working, thanks to this program. You would be stripping away a whole part of my personality if the government took this away. I wouldn’t be able to help my community.”
Daniel [last name withheld] moved to New Jersey from South Korea when he was 11. Now 32, he has studied and worked as an ICU nurse since the creation of the DACA program in 2012. Speaking of the time before DACA, he told Vox: “I felt like I was in a prison without any bars.”
ADMINISTRATION IGNORES RULE OF LAW
The Trump administration is again showing its customary recalcitrance. In the wake of the June ruling on DACA, the U.S. Citizenship and Immigration Services, an executive agency, posted an official press release to say that the ruling had “no basis in law.” In reality, the Court had found Trump’s rescission of DACA in violation of a federal law called the Administrative Procedures Act.
Since the U.S. Constitution allows only the judicial branch to interpret laws, the press release would portend what on July 28 became a gross overreach of executive power, when the Department of Homeland Security (DHS) announced that while it took time to “thoughtfully consider” the future of DACA, it would reject all new applications and reduce all renewal periods from two years down to one. In other words, the renewal documents, interviews and a $495 fee will need to be paid and collected every year.
As states and universities prepared to file suit against the new restrictions, Leidy Leon was moving to a new apartment in Merced, Calif., where she planned to attend college. “I got a text with the link to the [DHS] memo, and I forgot to breathe for a minute. It was disappointing, frustrating, a deep sorrow in a way. After I kind of composed myself a little bit, I checked in with a couple of friends who are in the same situation to show my support for them” (EdSource).
TRUMP SABOTAGING THE CENSUS
Meanwhile, Trump has already been busy making orders that defy more Supreme Court decisions; for example, the census case. On July 21 he ordered that the Constitutional phrase “all persons” for the purpose of Congressional reapportionment be defined to exclude undocumented people. However, the census has already begun and is on track to count the entire population present on midnight of April 1, not a subset, so the number Trump is demanding be used will not even be reported by the census, as required, but could only be ascertained through extensive cross-referencing and, sooner or later, subjective estimations.
As with so many other constitutional crises being breached for the first time with Trump, it is unclear how the courts assert their coequal function, their constitutional balance of power over the president. Whether that means monetary fines against executive agencies or even against individual employees of those agencies, the individual actions of judges cannot stand on their own. They must be “upheld” by ordinary people who recognize and reject the actions of a president who poses imminent danger to their freedom.