Leon Fresco partner with Holland & Knight.

While supporters and opponents of the Deferred Action for Childhood Arrivals (DACA) memorandum both reacted strongly to the U.S. Supreme Court's June 18 decision maintaining the existence of the program for now, it is important to take stock of where things stand now, and where they might be heading under various scenarios moving forward.

For those still unfamiliar with the program, DACA was created in June 2012 via a memorandum issued by then Department of Homeland Security Secretary Janet Napolitano. The program allows certain unauthorized foreign nationals who arrived in the United States as children to apply for a two-year forbearance of removal and employment authorization.

Prior to the court's decision, many commentators and public officials arguing for the rescission of DACA had argued that the court had no business reviewing the rescission of DACA because "if President Barack Obama can create DACA, President Donald Trump can rescind DACA."

The Supreme Court, however, disagreed with this argument and held that the rescission of DACA was reviewable because it "created a program for conferring affirmative immigration relief" and provided benefits to its recipients including work authorization and a Social Security number. The court therefore concluded that both "the creation of that program—and its rescission—is an 'action that provides a focus for judicial review.'" It is only because the Supreme Court held that the Trump administration's rescission of DACA was reviewable that the program survives today.

Although the recipients of DACA benefited from this conclusion last week, the future of DACA and similar programs is actually far more uncertain moving forward. One of the most noteworthy aspects of last week's DACA decision is that the court explicitly stated that it did not evaluate the "correctness of the illegality conclusion." Moving forward, this presents significant uncertainty both for future administrations and for the beneficiaries of DACA and perhaps similar expanded programs. For instance, even in the scenario that the presidential administration changes, it is not unreasonable to expect that attorneys general will look to restart their lawsuits challenging the legality of DACA for not having been issued with notice and comment rulemaking and also for violating the Immigration and Nationality Act (INA).

At some point, unless Congress intervenes, it is inevitable that the Supreme Court will have to squarely grapple with whether DACA is legal, and whether other equitable doctrines such as laches are applicable to maintain the program even if DACA is deemed to be illegal. Moreover, a new administration would be under great pressure both to update and expand DACA. In such a scenario, it would be advised to consider whether it is advisable to pursue notice and comment rulemaking and to further ground its rulemaking in specific sections of the Immigration and Nationality Act before implementing such a program. Nothing in the Supreme Court's DACA decision guarantees that a future coalition of justices would not invalidate either DACA or a future program for exceeding presidential authority under the INA. Even though DACA would have been invalidated if the court had held that its rescission was unreviewable, a future president might have had far more flexibility to adopt a new more expansive DACA program using the same doctrine of nonreviewability.

Similarly, if the current administration is retained for another four years, it too will face challenges rescinding DACA if it uses either an updated detailed memorandum or even notice and comment rulemaking to accomplish its objective. For instance, it will be important for the administration to consider the current COVID-19 crisis when reaching its decision. While the current COVID-19 crisis might in one sense seem to support the rescission of DACA due to higher levels of unemployment, it also cuts very strongly against rescinding DACA given both how many DACA recipients are essential workers as well as how difficult detention and removal is for Immigration and Customs Enforcement during this current COVID-19 crisis. It will be very difficult to justify the need to subject DACA recipients to detention and removal in a world where the borders between many countries are closed because of COVID-19. Similarly, many DACA recipients will be able to show reliance interests in terms of investments made in education, a home, or in a business that will make any one-sized fits all rescission of DACA difficult to accomplish. Finally, given the current administrative pronouncements stating that rescission of DACA is a fait accompli, these administrative analyses of the newest factors that have arisen since the prior rescission memo may be given far less deference by courts.

Unless Congress acts moving forward, last week's DACA ruling was simply the ending of the beginning on DACA rather than the beginning of the end. There is much to be gained by all sides in reaching some Congressionally legislated certainty on the status of not only the Dreamers but also many other populations such as children who will age out of legal status while their parents wait in discriminatory green card lines as well as children of E-2 visa holders who have no recourse whatsoever. Unless Congress acts, all of these individuals, the companies and co-workers that rely upon them, their families and friends, and all of American society will unfortunately have to face many future Supreme Court decision days such as what we saw last week.

Leon Fresco is a partner in Holland & Knight's Washington, D.C., office where he focuses his practice on providing global immigration representation. Before joining Holland & Knight, he was the deputy assistant Attorney General for the Office of Immigration Litigation at the U.S. Department of Justice's civil division.