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.
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 backed Trump’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.
Now, your questions
Kevin, Germany: As part of Epstein’s nonprosecution agreement in Florida, federal prosecutors agreed not to charge certain co-conspirators. Was the agreement legal, and can it still be enforced after Epstein’s death?
This 2008 nonprosecution deal is absolutely bizarre. In my 14 years as a prosecutor, I handled and supervised thousands of cases and never immunized a defendant’s co-conspirators as part of a deal with that defendant, or even heard of such a thing.
If Epstein’s co-conspirators are eventually charged, they surely will point to the Florida deal and argue: “But the Justice Department already agreed not to prosecute us, in the Epstein deal.” However, I do not think the Epstein agreement ultimately will protect his co-conspirators.
First, a federal judge has ruled that then-US Attorney Alex Acosta broke the law by failing to notify Epstein’s victims of the deal. While the judge did not prescribe a specific remedy, it is difficult to imagine Epstein’s co-conspirators getting a free pass because of an illegal agreement.
Second, any charges against Epstein’s co-conspirators likely will come from the Southern District of New York, which was not a party or signatory to the 2008 agreement between the Southern District of Florida and Epstein. Generally — as the Southern District of New York previously argued in Epstein’s case, citing precedent — an agreement by one US attorney’s office does not bind another US attorney’s office.
Finally, now that Epstein is dead, arguably there is nobody left who has legal standing to enforce the agreement. Epstein himself might have been able to argue that, as a signatory to the agreement, he had the legal right to enforce it. But the co-conspirators themselves were not parties to the deal, and hence cannot come in as outsiders seeking to enforce (and benefit) from it.