The Supreme Court heard arguments on Tuesday in a set of blockbuster cases over whether President Donald Trump may terminate an Obama-era immigration program that shields hundreds of thousands of young immigrants from deportation and allows them to receive work permits.
At the end of 80 minutes of extended argument the justices looked likely to allow the president to end the program, with Trump appointees Justices Neil Gorsuch and Brett Kavanaugh leaning in favor of the administration alongside the court’s three other conservatives.
Chief Justice John Roberts, though, who has at times split with his fellow conservatives in cases involving the Trump administration’s executive actions, could be unpredictable. It is not always possible to tell how justices will vote based on their questions at oral argument.
The court’s conservatives suggested that ending the program, which was implemented in 2012 by then-Department of Homeland Security chief Janet Napolitano, fell within the administration’s discretion.
“I hear a lot of facts, sympathetic facts, and they speak to all of us” Gorsuch said to Theodore Olson, one of the attorneys opposing the termination of DACA.
But he pressed Olson for a “legal limiting principle” defining when the government may reverse itself in a matter in which it has some discretion. Gorsuch noted a decision in favor of DACA recipients could have implications for the marijuana industry, which has grown at the state level despite violating federal law.
The court’s liberals, particularly Justices Sonia Sotomayor and Stephen Breyer, suggested that the Trump administration did not adequately consider the effects of rescinding the program when it did so in 2017. To date, that action has been halted by lower courts in New York, California and Washington, D.C.
Sotomayor suggested that comments from Trump himself that were sympathetic to those under the program may have hurt the administration’s arguments, by “telling DACA eligible people that they were safe under him that that he would find a way to keep them here,” she said.
The justices pressed the Trump administration’s attorney, Solicitor General Noel Francisco, on the shifting explanations for ending DACA.
The Trump administration first announced its intention to wind down DACA in a 2017 memorandum issued by then-acting Homeland Security Secretary Elaine Duke. That memorandum cited then-Attorney General Jeff Sessions’ conclusion that DACA was unlawful, and so the administration could not enforce it.
In response to ongoing litigation before the U.S. District Court in Washington D.C., the administration expanded on its reasoning for ending the program in a second memorandum a year later. The second memorandum, issued by then-Homeland Security Secretary Kirstjen Nielsen, also reasoned that DACA was unlawful, but added that the administration opposed it regardless of whether it was against the law.
The administration would have an easier legal case to make if they opposed DACA on policy grounds, but has largely declined to do so. Polls show that both Republicans and Democrats are generally sympathetic to those protected by the program.
Justice Ruth Bader Ginsburg said on Tuesday that the second memo was “infected by the idea that [DACA] is illegal” and accused the administration of “trying to put the blame on the law.”
If the reason for ending DACA was policy, and not law, she said, then the administration would have to own the consequences of ending it.
The cases are Department of Homeland Security v. Regents of the University of , No. 18-587; Donald Trump v. National Association for the Advancement of Colored People, No. 18-588, and Kevin McAleenan v. Martin Jonathan Batalla Vidal, No. 18-589.