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Gorsuch and Kavanaugh Would Have Upheld Trump’s Elimination of DACA: Confirmed Judges, Confirmed Fears

News and Analysis
Gorsuch and Kavanaugh Would Have Upheld Trump’s Elimination of DACA: Confirmed Judges, Confirmed Fears

Confirmed Judges, Confirmed Fears” is a blog series documenting the harmful impact of President Trump’s judges on Americans’ rights and liberties. Cases in the series can be found by issue and by judge at this link.

To the surprise of no one who was familiar with their records, Trump’s two Supreme Court justices voted against the DREAMers in the DACA case, DHS v. Regents of the University of California. Had their dissents in this 5-4 case carried the day, it would have been a dark day for DREAMers and for the rule of law. Fortunately, as with the census case last year, the Trump administration’s deceptions to the Court were so blatant that even the Chief Justice joined the four moderates in rejecting it.

One of the most high-profile ways the administration turned President Trump and then-Attorney General Jeff Sessions’s animus into law was by trying to rescind President Obama’s highly successful Deferred Action for Childhood Arrivals program (DACA). The only substantive reason they gave was their mistaken assertion that it was an unlawful program, with no meaningful analysis of the type required by the Administrative Procedure Act.

Several months after announcing the rescission, after losing legal challenges in the lower courts, DHS issued a memorandum providing new explanations to support the decision made earlier. Under the rule of law, agencies cannot simply make up new policy rationales during litigation. As it had in the Census citizenship question case—which also targeted immigrants—the administration was essentially engaging in fraud before the courts.  And as before, that did not seem to bother either Gorsuch or Kavanaugh.

Kavanaugh wrote a separate dissent accepting the deception as legitimate. Gorsuch (along with Justice Alito) joined Justice Thomas’s dissent arguing that DACA not only violated congressional statutes, but also the Constitution. If they had their way, the program would have ended—and roundups of innocent immigrants could have begun—today.

Unfortunately, the Supreme Court’s decision gives the Trump administration another chance to end DACA, as long as it follows the Administrative Procedure Act and devises an adequate administrative record. So the threat of deportation continues for the nation’s approximately 700,000 DREAMers. That includes tens of thousands of Black DACA recipients, whose lives are regularly at risk at the hands of the police and who still have deportation at the hands of the Trump administration as another omnipresent malevolent force to confront on a daily basis.


Brett Kavanaugh, Confirmed Judges Confirmed Fears, DACA, Immigration, Neil Gorsuch, Supreme Court