Justice Sotomayor on DACA, and How the Administration Might Strike Again

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The Supreme Court handed down two important victories to the immigrant and LGBTQ+ community last week, when it upheld protections for undocumented youth and for gay and transgender people across the country.

In its ruling on DACA, especially, the Court’s decision to uphold the Deferred Action Program has been both a symbolic and a consistent gesture, where liberal justices plus Chief Justice John G. Roberts Jr. decided that the Trump Administration does not have sufficient grounds to end the program that protects 700,000 young immigrants in the country.

But for Justice Sonia Sotomayor, the only Latina on the court who was nominated by President Barack Obama in 2009, Roberts’ opinion was not enough.

As Mother Jones explained, Sotomayor stated in her audience that Roberts “went too easy on Donald Trump,” suggesting that it was precisely “the President’s history of vicious and racist comments about immigrants” that provided vital legal context necessary to judge his attempt to end DACA.

While Roberts focused on “technicalities” by ruling that the Department of Homeland Security had failed to take the required steps to rescind the policy, Sotomayor went a step further and “chastised” the Supreme Court Chief Justice for adopting an approach that ignored President Trump’s framework of racist and discriminatory comments when referring to immigrants in the country.

Sotomayor argues that both Roberts and others on the court “ignored this record” and therefore “prematurely disposed of respondents’ equal protection claims by overlooking the strength of their complaints.”

She wrote that, first, Roberts did not take into account the President’s “innumerable racist comments” about Mexican immigrants whom he frequently described as “people who have a lot of problems,” “the bad ones,” “criminals, drug dealers, [and] rapists,” and how he frequently compared immigrants to “animals.”

“Taken together, the words of the President help to create the strong perception that the rescission decision was contaminated by impermissible discriminatory animus,” Sotomayor wrote.

Similarly, the Latina justice criticized Roberts for “minimizing” the impact that the suspension of the DACA program could have on the Hispanic community in the country.

“I would not so readily dismiss the allegation that an executive decision disproportionately harms the same racial group that the President branded as less desirable mere months earlier,” she added.

Although Sotomayor’s concurrence hit exactly the right note and has been, among others, one of the most praised by the community, the fight for the 700,000 undocumented youth in the country does not end there.

Last Friday, President Donald Trump himself ordered that new documents be presented to continue fighting for the termination of the program as soon as next month. 

“We will be submitting enhanced papers shortly in order to properly fulfill the Supreme Court’s ruling & request of yesterday,” Trump wrote. “The Supreme Court asked us to resubmit on DACA, nothing was lost or won. They ‘punted,’ much like in a football game (where hopefully they would stand for our great American Flag). We will be submitting enhanced papers shortly.”

The Supreme Court’s decision left open the possibility that the administration could incorporate more documents to strengthen its argument that the program is illegal, a position held by a coalition of several conservative states — led by Texas — since Obama announced the program.

While any new attempt to end it will likely trigger new demands from DACA supporters and advocates, the truth is that the Trump administration will not rest on its laurels, especially in an election year.