The Supreme Court has an immigration disaster on its hands

Opinion by Elie Honig
Updated 10:45 AM ET, Wed August 21, 2019

(CNN)President Donald Trump has placed the Obama administration's Deferred Action for Childhood Arrivals(DACA) program squarely in his anti-immigration crosshairs. Ever since Trump took the oath of office, DACA has been living on borrowed time, which may soon run out -- with potentially devastating consequences for hundreds of thousands of young people.

In September 2017, Trump tried to end DACA, which protects from deportation undocumented immigrants who came to the United States as children with their parents. But a series of decisions from federal trial and appellate courts put Trump's efforts on hold and allowed DACA to continue temporarily.

Elie Honig

Do not be lulled by the temporary maintenance of the status quo. The skies are darkening for DACA. The case heads to the Supreme Court in its upcoming term, and this week the Justice Department formally backedTrump's effort to end the program. The Justice Department surprised exactly nobody by siding with Trump, arguing that DACA "at best" is "legally questionable" and "at worst, it is illegal."

How the Supreme Court will rule is uncertain, but watch for a 4-4 split along the Court's ideological fault lines. Expect the four conservative justices, all appointed by Republicans (Justices Clarence Thomas, Samuel Alito, Neil Gorsuch and Brett Kavanaugh) to support the Trump administration's effort to end DACA, and the four liberal justices, all appointed by Democrats (Justices Ruth Bader Ginsberg, Stephen Breyer, Sonia Sotomayor and Elana Kagan) to vote against it.

In that case, Chief Justice John Roberts will likely cast the swing vote, as he has done in recent blockbuster rulings, including some pertaining to immigration. Roberts, a nominee of President George W. Bush, has stalwart conservative credentials, but over time he has become more unpredictable and has sided with the Court's liberal bloc in high-profile cases. He stunned many by casting a decisive vote to uphold the Affordable Care Act in 2012, and in the most recent term, Roberts sided with four liberal justices to block the Trump administration's effort to add a citizenship question to the census in the absence of a legitimate explanation of reasons from the White House.

Despite his occasional tendency to break from traditional ideological expectations, Roberts remains predominantly conservative in his rulings. And core conservative ideology tends to support broad executive powers -- and oppose judicial second-guessing of executive-branch policymaking -- which would seem to favor the administration's efforts to repeal DACA.

If DACA does fall, the result will be potentially catastrophic. DACA protects an estimated 700,000 undocumented immigrants who arrived in the United States before age 16. If stripped of DACA's protections, all of those people will be subject to deportation -- even if they have committed no crime and done nothing wrong.

Trump himself has described DACA protectees as "good, educated and accomplished young people." To use them as political pawns to gain other immigration concessions -- including border wall funding -- is distasteful. And to defend efforts to upend the productive lives of hundreds of thousands of young people in the United States, as the Justice Department has done this week, is simply unconscionable.