Professor Cover and two of our first-year students recently wrote an op-ed that was published in the Akron Beacon Journal and Cincinnati.com regarding the deportation of DACA recipients and its possible repercussions. The student co-authors, Alicia Mallo and Leah Rothfeld, intensively studied the current DACA litigation as part of their scholarship, reviewing lower courts' opinions and the Supreme Court briefing.
The piece examined the legal principle of executive discretion, and whether the Supreme Court will decide that the government may now rescind DACA as an act of executive discretion.
"Despite the tragic policy consequences of a decision permitting DACA’s termination, the court can cabin its legal impact. It need only uphold the termination as a legitimate exercise of discretion by President Trump. The court need not rule that DACA itself was unlawful and an unacceptable exercise of discretion by President Obama.
Holding that DACA itself is unlawful would contradict the executive power the court recognized in the travel ban case, which included the discretion to deny access to immigrants and refugees from certain countries. It would be inconsistent now to deny such discretion regarding deferring deportation of childhood arrival immigrants. By ruling that DACA is unlawful, the Supreme Court would declare that the executive does not have the discretion to defer deportation, limiting needed presidential flexibility for security and humanitarian purposes. Though we would prefer a ruling that prevents President Trump’s destruction of DACA, the judicial restraint that we propose may insulate the court from charges of partisanship, allow different presidents to resume more humane deportation policies and encourage Congress to craft comprehensive immigration laws."