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The New Yorker Radio Hour
The Supreme Court Weighs the End of DACA
00:22:48
Jeff Sessions, then the Attorney General, announced in 2017 the cancellation of the Obama-era policy known as DACA—Deferred Action for Childhood Arrivals. A number of plaintiffs sued, and their case goes to the Supreme Court next week. The New Yorker’s Jonathan Blitzer spoke with two of the attorneys who will argue for it. The noted litigator Ted Olson is generally a champion of conservative issues, but he is fighting the Trump Administration on this case. He told Blitzer, “It’s a rule-of-law case—not a liberal or conversative case—involving hundreds of thousands of individuals who will be hurt by an abrupt and unexplained and unjustified change in policy.” And Blitzer also spoke with Luis Cortes, a thirty-one-year-old from Seattle who is arguing his first Supreme Court case. Cortes is an immigration lawyer who is himself an undocumented immigrant protected by DACA status; if he loses his case, he will be at risk of deportation. Plus, while reporting on wildfire in Los Angeles, the...
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A
From one World Trade center in Manhattan. This is the New Yorker Radio Hour, a co production of WNYC studios and the New Yorker.
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B
This is the New Yorker Radio Hour. I'm David Remnick. A couple of days ago, I called Dana Goodyear, who's been reporting from California on the wildfires. Dana, how are you?
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A
I'm doing well, thank you.
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B
Now, it has to be said, you among many, many other families around the Los Angeles area had to be evacuated. Had you ever been evacuated? And what's that like?
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A
I had not. So I've been in California since 2005 and have, as you know, often written about fires. And to do that, I go out trying to find fires and people who have been evacuated. And it was weirdly convenient that the story came right to my door. It wasn't harrowing from a kind of, you know, ash falling from the sky and flames looking at the houses point of view. For me and my family, it was just more. I was so surprised the concern, and I think the reason that the evacuations were so aggressive this year was that the wind was blowing very, very powerfully and in a direction that put a whole bunch of neighborhoods in the potential path of the fire.
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B
So this is the new normal for so many people in California, Northern California, Southern California and other parts of the country. How does that change your psychology going forward?
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A
Well, I loved it last year when Jerry Brown called it the new abnormal. Just perfectly well put. But it has always been normal here to have seasonal fire, that is the ecology of California. What's abnormal is to have so much residential development up into the mountain areas. Housing has pushed into those territories where fires used to burn freely and not bother anybody. But there's also obviously the huge factor of the warming climate. The brush is very dry and the winds are blowing very, very intensely. So that has created the possibility not of major conflagrations separated by 15 years in which people can recover and forget, but every year. And that's what felt really different about this fall was in Southern California, the Woolsey fire, which killed three people, was very devastating. And to have another fire a year later that had the potential to do that much damage or more. I think that was a bit of a shift in the psychology for me and for lots of people I talk to where the idea that this could happen every year or could happen again next month also, and the month after that, because fire season is getting longer and longer and I think that's. That's hard to cope with and hard to figure out.
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B
Well, but it's Also caused a lot of stories about whether ultimately California is habitable. In other words, we're hearing a lot of kind of catastrophe riding.
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I know, because it's fun. It's fun.
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Well, is it legitimate?
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A
Well, I think California will be habitable for a very, very long time. I don't think it's as dire as all that in terms of how people will respond to it. Will we have a reverse dust bowl? No, I don't think we will. But I think that it has caused people to question some of the tenets of the California dream.
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B
How do you mean?
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A
Well, California is a place that is supposed to represent a kind of ideal expression of natural beauty and creative possibility. And people, you know, they're health fanatics here. And everything is supposed to be about this sort of glorious, shiny expression of being your best possible self and the illusion that this place was a refuge from every, you know, problem and struggle, which I think some people actually believe, even if they really live it out. I think that is gone. But that was silly and unrealistic. Anyway.
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B
Do you ever think about leaving California?
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A
Look, if every year there was a catastrophic event that caused me to fear for my children's lives, I might think about going somewhere else. But I also think that this is a place where people really do innovate. And, you know, if these climate problems were not coming home to roost in California, some of the potential for the solution wouldn't be here. I mean, there's an urgent need for solutions to how we're going to live in the future, all of us, not just Californians. And I do have, I hope not misplaced confidence in the brains that are here and the people who are working in the sciences in particular. I have heard of new soils that are being developed that are flame resistant. And the way people are planting now is much, much more sensitive to the issues of climate and the water conservation lessons that we got from that extended drought, those are lasting. So there is a way in which I see a lot of the problems originating here and being manufactured here, and also a lot of the solutions.
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Dana Goodyear, thank you.
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Thank you so much.
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That's Dana Goodyear, a staff writer at the magazine, and you can read her coverage of the California fires@newyorker.com this is the New Yorker Radio Hour. For 10 years, Congress debated the DREAM Act. It gave a pathway to citizenship to undocumented immigrants who had come here as children. There were possibly millions of such people. It was introduced at first with bipartisan support, but immigration hardliners kept throwing up hurdle after hurdle, and a decade later, the DREAM act had gone nowhere. Finally, President Obama just gave up. Instead, in 2012, he issued the executive policy we know as DACA, Deferred Action for Childhood Arrivals. If the Dreamers couldn't become citizens, he could at least shield them from deportation. After the Trump administration abruptly canceled daca, a number of plaintiffs sued, and their case goes to the Supreme Court this week. On Tuesday. The New Yorker's Jonathan Blitzer recently spoke with two of the lawyers who are going to argue the case.
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I first met Luis Cortez in February of 2017 because I was writing a story about a DACA recipient, and I needed to get in touch with that person's lawyer. Luis was his lawyer. And so I call up Luis with a long list of questions, and he expertly walks me through the ins and outs of this person's case. And we get to talking. And in the course of the conversation, it starts to come out that Luis himself is a DACA recipient. And so his own fate is bound up in the fates of all of the clients he's representing who also have daca. Luis was born in Morella, Mechoacan in Mexico, and came to the US with his parents when he was barely a year old. He had no sense growing up that he didn't have legal status. He didn't understand really what that meant, what the limitations would eventually be on him, on his family. And that's a fairly common experience.
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D
The first time I think I, I really realized what being undocumented meant was when I was in eighth grade and there was a trip to Europe that the 8th grade class was taking. And in order to offset some of the costs, we were going to sell See's Candies chocolate in order to fundraise. And I sold a ton of chocolate. I was hustling that chocolate hardcore. And I had raised enough money to go. And it wasn't until after where I let my parents know, like, I made it and I have all this money and that they let me know, like, you can't go because you weren't born here. And that's all I knew at that time. Like, I couldn't go because I wasn't born here. But I didn't really know much more of the mechanics in eighth grade. I remember being very pissed.
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C
Yeah, yeah.
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That I wasn't able to go.
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C
Yeah, yeah. And, you know, you go to college, from college, you go straight to law school. So when you started in law school, it was 2010. DACA wasn't a thought on anyone's mind yet, as such. And so there were questions, too, about what your working life would look like even after law school. Right. Because you didn't have necessarily a legal avenue to be employable at that time. So what was your sense of what DACA was? Did it immediately seem like a lifeline to you? Was it something you were suspicious of? How did you understand it?
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D
Yeah. So it was. I had just finished my second year of law school, and it was during the summer, so I was going to my last year. And then DACA is announced as I'm about to start my last year of law school. And it almost seemed too good to be tried. True. It seemed like it fell from the sky.
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Now, let's be clear. This is not amnesty. This is not immunity. This is not a path to citizenship. It's not a permanent fix. This is a temporary stopgap measure that lets us focus our resources wisely while giving a degree of relief and hope to talented, driven, patriotic young people. It is the right thing to do.
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D
I decided to apply in a very nervous way. I submitted my application. The scariest part was going into the DHS offices to get fingerprinted, because those DHS offices are the same offices that ICE is located. So you have this sense of, like, what if I get fingerprinted and I don't come out? Right. And. But I remember when my work permit came in and I got my Social Security number, it was life changing.
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C
Yeah. And so you go on, thanks in large part to having this lawful status conferred through daca. You go on to practice immigration law.
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D
Yeah.
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You're living your life. You have your clients, you're working in Seattle.
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D
Yeah.
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C
And then 2016 happens and President Trump takes office. And not entirely out of the blue because there had been murmurings of this, but still somewhat suddenly, the administration comes out and cancels daca just outright.
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D
Good morning. I'm here today to announce that the program known as DACA that was effectuated under the Obama administration is being rescinded.
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C
What do you do then? I mean, you're also, as an immigration lawyer, you're responding to this state of chaos now. And as a DACA recipient, you're responding to this state of chaos. What was your immediate reaction and what were your first moves in the immediate aftermath after September 5, 2017, when the administration canceled it?
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D
Yeah. You know, my reaction was both out of frustration and disappointment. Part of my frustration was that this is the fear realized by hundreds of thousands of DACA recipients when they first applied. What happens if they do away with this program and then start now. They have all of our information.
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C
And this is 700,000 people.
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D
Yes. Yeah. Hundreds of thousands of people and their communities and their employers, their spouses, their children. We're talking about millions of people now. So it was a very confusing and kind of chaotic time. We were flooded with phone calls that day, that week about whether DACA is done away with altogether. What now? And interestingly enough, you know, as we're having this conversation, I'm almost having this conversation with myself, too, about, you know, if DACA does end, what then? And I'm as. Explaining it to them. I'm hearing myself saying it out loud, me realizing, like, what then?
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And what were you saying? What were you hearing yourself say?
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That there really isn't any other way, that there is no other way to get status, and that we're going to be back to what we were before hiding.
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C
The administration's decision to cancel DACA is now coming before the Supreme Court, and it's coming before the Supreme Court because a number of different groups in a number of different venues challenged the legality of how the administration ended DACA in the first place. And on November 12, the Supreme Court will hear oral arguments in this case. And you are going to be one of. Is it three people?
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D
Four.
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C
Four people sitting at the plaintiff's table in front of the justices. Who else is gonna be at the table?
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D
Right. There was a lot of discussions about who would present this case, and representing the individual DACA recipients is gonna be myself and Ted Olson, who was formerly the Solicitor General under George W. Bush.
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C
And so Ted Olson's not someone just on its face who would be aligned with this cause. I mean, a sort of legendary conservative Supreme Court litigator.
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D
You know, Ted is a very skilled Supreme Court litigator and knows the, you know, the pace of the arguments and how to. There's a special art and a science to argue the Supreme Court. So, you know, we feel very lucky to have someone like Ted around.
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A
Hello.
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Hi, Mr. Olson? Yes, how are you? This is Jonathan Blitzer from the New Yorker. Thanks for making the time.
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We're happy to do it.
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C
Could you talk a bit about what you see as the central issue of this case?
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F
It all boils down to whether or not the termination of DACA was legal, whether. Whether that and. And what the reasons for doing so are and what the consequences are when the government of the United States announces a policy that has an immediate impact on very substantial numbers of persons. In this case, 700,000 persons and their families, persons who have been authorized to work pursuant to the program, travel, receive certain benefits and things of that nature. The impact on those individuals requires the government to announce reasons for its decision, to explain what it has considered in making that decision, explaining why that decision is lawful, so that there will be accountability for those decisions. And this administration announcing the rescission of this program gave no reasons for the decision and no explanation for it.
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D
You know, there's this phrase under the Administrative Procedures act called arbitrary and capricious. An agency can't act arbitrarily or capriciously. And one of the ways that it does that is it goes through the rationale and it goes through the consequences of all of a sudden sharply changing a policy. And again, it could consider everything and say, yeah, it's worth it. Fine, that's fine. As long as it does its homework. And there doesn't seem to be any kind of considerations that were made here.
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C
How common is it that the government gets called out along these lines? Is this, is this a. It seems to me, anyway, that before the Trump administration, as a journalist, I wasn't concerning myself with the Administrative Procedures act with, with all that much regularity, but now I am.
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F
Well, yes, I. The answer to that question is that the government frequently gets caught up by the judiciary for insufficiently explaining why it is doing something or explaining it in a way that is obviously transparently not correct. They had the same problem. The Trump administration had the same problem with the addition of the citizenship question on the census. And the Supreme Court decided, well, whatever, you might be able to add that question, but you've got to be able to explain it, and you can't give us bogus reasons for doing so.
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C
In terms of your specific strategy now, coming before the justices, are there particular justices on the court you're targeting your arguments to. How are you thinking about the composition of the court, and how does that impact the way in which you frame your case?
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F
Well, what we do is that we attempt to convince all of them. We're not sanguine about how any justice will vote on a particular issue in a particular case or anything like that. But we want to make arguments that are focused on the way the justices have decided cases in the past and in this area where all we're asking is for the court to recognize that this administration, and by the way, not for the first time this administration has acted in an arbitrary fashion. Ready, fire, aim. And we want the justices, whichever end of the political spectrum their backgrounds might be, to understand that this is a rule of law case. It isn't a liberal or conservative case. It's a rule of law case, but it's a rule of law case involving hundreds of thousands of individuals who will be hurt by an abrupt and unexplained and unjustified change in policy. This puts the human face on. This is very, very real to all of these individuals who are going to school, raising families, serving in our armed forces, forming businesses, becoming a part of the community, and then having to live with this sword of Damocles hanging over them all of the time and the uncertainty that that causes. You can imagine how difficult it would be to live a life in the shadow of that. That doom, so to speak. This is a very, very serious thing.
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C
Luis. You're going to be one of the few people in the courtroom, but certainly the only person sitting at one of the litigators tables before the justices whose personal life is at stake. Given what the arguments are and how these arguments play out, what does that feel like? Does it feel. Does it feel like a burden? Does it feel like an opportunity? Does it make you nervous? Does it make you. I don't know.
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D
Yeah, you know, it kind of depends what hat I'm wearing. You know, as a lawyer, I am very stoked about it. I didn't think that I would have a Supreme Court case this early on in my career. And so I'm very excited to be not just in the court, but at the litigator's table. It's also very daunting. The nine people who are gonna be hearing the case and who I'll be looking at them and they'll be looking at me is, you know, they're gonna have a tremendous impact on my life, and they're the ones who get to decide whether my clients are deported and me with them.
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C
Do you have faith in those nine faces you'll be staring at?
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D
I have to. You know, I, you know, one of the things that I, I have learned as a lawyer is that. And what makes, I think, the US Significantly different from any other country, it's its court system and its ability to do the right thing, the just thing, when there's injustice done. And this, although it's imperfect, this country has an amazing history of doing that.
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Jonathan Blitzer spoke with Luis Cortez and Ted Olson, who are both arguing against the Trump administration in the Supreme Court this week. The Department of Justice had no comment for our story. I'm David Remnick, and this is the New Yorker Radio Hour. And that's all we've got for today. Please join us next time for a conversation with Philip Pullman, the author of his Dark Materials, which is now on hbo. See you then.
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The New Yorker Radio Hour is a co production of WNYC Studios and the New Yorker. Our theme music was composed and performed by Meryl Garbus of Tune Yards, with additional music by Alexis Quadrado. This episode was produced by Alex Barron, Emily Bottin, Ave Carrillo, Rhiannon Corby, Karen Frohman, Kalalea, David Krasnow, Caroline Lester, Louis Mitchell, Michelle Moses and Steven Valentino, with help from Morgan Flannery, Allison McAdam, Meng Fei Chen and Emily Mann. The New Yorker Radio Hour is supported in part by the Torina Endowment Fund.