The Dreamers Will Win in Court

Nineteen states and the District of Columbia have now filed lawsuits to block the Trump administration from terminating the Deferred Action for Childhood Arrivals (DACA) program and, absent Congressional action to restore it, deporting the approximately 800,000 Dreamers.

Many legal commentators are skeptical of the lawsuits’ prospects, citing, inter alia, the executive branch’s broad authority over immigration matters.

My money is on the Dreamers. Here is what may tip the courts — even a majority on the Supreme Court — in favor of the Dreamers.

First, the Trump administration lacks a legitimate justification for deporting the Dreamers. President Trump has suggested that the Dreamers may be a threat because some “are gang members and drug dealers.” In fact, according to a Cato Institute study, overall the Dreamers have lower rates of incarceration than native-born Americans in the same education and age group.

Attorney General Jeff Sessions, the Simon Legree of this administration, contends that the Dreamers take jobs away from Americans — a claim debunked by experts. Deporting the Dreamers will actually harm the economy. Another Cato Institute study estimates that the deportations would cost the federal government $60 billion in revenue and cause a “$280 billion reduction in economic growth over the next decade.”

Absent a legitimate justification, the courts could agree with the states’ allegations that racial animus is the motivation for terminating DACA, and that could be fatal to the Trump administration. Pointing out that nearly 80 percent of the Dreamers are from Mexico, the states cite President Trump’s “oft-stated commitments — whether personally held, stated to appease some portion of his constituency, or some combination thereof — to punish and disparage people with Mexican roots.” One such disparagement was his attack during the 2016 campaign on a federal judge who Trump claimed could not rule fairly in a lawsuit involving Trump University because of the judge’s Mexican ancestry. Even House Speaker Paul Ryan called that a “textbook definition of a racist comment.”

Second, deporting the Dreamers will be cruel and devastating to innocent young people, who had no control or choice over their presence in the United States. The Dreamers have become exemplary young Americans, in every sense but birthplace, getting an education, becoming medical personnel at a time of shortage of doctors and nurses, serving in the armed forces, and in the case of one Dreamer, sacrificing his life in an attempt to rescue victims of Hurricane Harvey in Houston. The Dreamers lives will be shattered beyond repair by deportation to countries many have never known.

Consequences matter to judges.

Third, the case is likely to reach the Supreme Court, where history is on the Dreamers’ side. The Supreme Court, always mindful of its historical standing, will not want to be responsible for helping to engineer a morally hideous event. The last time it did that, the Court’s reputation suffered lasting damage.

In 1944, in Korematsu v. United States, the Supreme Court upheld the internment of more than 120,000 Japanese Americans in World War II. Despite posing no national security threat, and for no reason other than their ancestry, these Americans (70,000 were citizens) were torn from their homes and incarcerated in guarded camps in remote, harsh deserts and plains. Justice Antonin Scalia ranked Korematsu alongside Dred Scott, the 1857 decision holding that black slaves were property and which helped start the Civil War, as among the court’s most shameful decisions.

How horrible will the Dreamer deportations be? To get an idea, view the 1942 photographs of forlorn Japanese Americans, with only a few personal belongings and often under armed guard, boarding the buses and trains that took them to the internment camps. There are eight times as many Dreamers who, unlike the Japanese Americans when they were finally released, won’t be able to go back to being Americans if they are deported. A majority of the Supreme Court likely will work hard to come up with a plausible legal rationale for avoiding a Korematsu II.

So, I bet on the Dreamers to win in court. They indeed exemplify the American Dream that every person in America has the opportunity to achieve success and happiness, regardless of race, color, creed — or ancestry. What judge will want to be remembered for having destroyed that dream?