Last week’s Supreme Court decision upholding DACA, while a technical victory for Dreamers and those of us who support them, did not go far enough. Chief Justice John Roberts’ 5–4 opinion found the Trump administration’s rationale insufficiently searching to justify terminating the program. Contrary to what the dissenting justices would have us believe (Thomas, Alito, Gorsuch, Kavanaugh), it is not the same for the executive branch to rescind a program as to create one, even when the president uses an executive order for both.
The crucial difference is that, once a program exists, people come to rely on it for any number of reasons. This is what the law terms a reliance interest. In short, eight years after President Obama established DACA, nearly one million young Americans brought to this country as infants or children have come to rely on the ability to live and work out of the shadows — including more in California than in any other state.
The average DACA recipient was brought to the U.S. by their Mexican-born parents when they were six years old and now, at 26 years old, lives in Los Angeles. In her court-ordered justification for ending DACA, former Homeland Security Secretary Kristjen Nielsen neglected to mention, much less actually weigh, how ending the program would impact DACA recipients and how that pain may have been mitigated.
Justice Sonia Sotomayor wrote a separate opinion in the case, in part joining Roberts’ and her fellow liberals (Ginsburg, Breyer and Kagan) in the above analysis and in part dissenting from that opinion. Alone among the nine justices, she would have sent the cases — the opinion consolidated several different challenges under the name Trump v. University of California (full disclosure, the university is my employer) — back to their various district courts for additional proceedings. Plaintiffs, including individual DACA recipients, cities, states, and civil rights organizations such as the NAACP, argued that the decision to end DACA was motivated by anti-Latino racism, racism readily apparent in Trump’s speeches and tweets over the past over the past four years.
As recently as November 12, 2019, Trump tweeted “Many of the people in DACA, no longer very young, are far from ‘angels.’ Some are very tough hardened criminals…” This is patently false because to be eligible for DACA one must undergo a rigorous criminal background check initially and then every two years. The tweet fits into a broader pattern painting Latinos as lawbreakers and criminal predators. It started with Trump’s campaign kick-off speech in 2015 in which he referred to Mexican men as “rapists,” but it has never abated. In summer 2018, for example, Trump tweeted that Central American families and unaccompanied children traveling together in so-called caravans to protect themselves from violence on the road northward were gang members “and some very bad people.” He has repeatedly labeled as “animals” Latino gang members accused but not convicted of crimes and a Mexican immigrant who actually was acquitted of the murder of a White woman in San Francisco.
Even more perniciously in the current context of justifiable outrage over unprovoked police violence, Trump has encouraged law enforcement officers to use violence against Latino arrestees. On May 22, 2018 at a rally in a Long Island town, he exhorted police officers in the audience to rough up MS-13 gang members: “Please don’t be too nice. Like, when you guys put somebody in the car and you’re protecting their head, you know…You can take the hand away, OK?” The next day, speaking during the immigration roundtable he convened at the White House, Trump praised ICE agents for roughing up detainees: “I’ll tell you something — the ICE guys are a lot rougher than the MS-13 guys. They’re rougher, they’re tougher, and they’re meaner…It’s almost like a war, where you’re getting rid of somebody that’s occupying your nation.”
Some federal judges had ruled against the Trump administration on the very question of the discriminatory motive, finding that the DACA plaintiffs had articulated a plausible case of impermissible racial animus against Mexicans and Latinos more generally that could proceed to consideration on the merits. Sotomayor would have allowed these claims to proceed in the lower courts, guaranteeing that the Trump administration would have defended itself during the height of the 2020 general election campaign. Instead, thanks to the Roberts opinion and Sotomayor’s three liberal colleagues, Trump is shielded from this dispute and also free to again attempt to justify ending DACA. (Whether he will make that political calculus is another matter altogether.)
Meanwhile, the nation’s 60 million Latinos — millions of Dreamers (not just those who have benefited from DACA), other immigrants (documented and not), and native-born citizens (including many whose ancestry in this land predates that of Trump’s ancestors) — are left wondering whether the Constitution’s promise of equal protection under the law applies to them. Although the lone Latinx Supreme Court justice was the only one willing to call out the role of racial animus in the move to rescind DACA, she is not the only one to have noticed it.
We will undoubtedly learn what Latinos think of four years of Trump’s anti-Latino racism this November. In the nation’s four most populous states, the share of Latinx voters will range from 15 percent in New York to 20 percent in Florida to 30 percent in Texas. In California, Latinos are expected to be one-third of voters, mostly from southern California counties, and I predict they will agree with Justice Sotomayor.