The US Supreme Court heard oral arguments Tuesday in two cases concerning immigration and border issues. The first, Department of Homeland Security v. Regents of the University of California, is a challenge to the Trump administration’s 2017 decision to terminate the Deferred Action for Child Arriveals (DACA) program. And the second, Hernandez v. Mesa, stems from a family who seeks to hold a US Border Patrol agent liable for the shooting death of their son, who was on the Mexican side of the border.
In 2012 the Obama administration established its DACA program, which allowed young adults who came illegally to the US as children to apply for protection from deportation. In 2017 the Trump Administration announced it was ending the program. Shortly after, many filed suit, arguing that the way in which the Trump administration went about pulling away from DACA, in addition to a constitutional violation, was a procedural one, because the Administrative Procedure Act requires valid explanation and purpose behind a policy change—they cannot just do something “arbitrary and capricious.” The Supreme Court consolidated three cases from the Ninth and Second Circuits, and the DC district court.
The Respondents in argued Tuesday that “the government’s termination of DACA triggered abrupt, tangible, adverse consequences and substantial disruptions in the lives of 700,000 individuals, their families, employers, communities and Armed Forces. That decision required the government to provide an accurate, reasoned, rational and legally sound explanation. It utterly failed to do so, asserting only the Attorney General’s unexplained assertion that he had no discretion because DACA was an unconstitutional exercise of authority by the executive branch.”
US Solicitor General Noel Francisco argued that the decision to end President Barack Obama’s immigration program was within the administration’s discretion.
The court heard then oral arguments in Hernandez, stemming from a 2010 incident where Jesus Mesa, a US Border Patrol Agent, was on the US side of the Mexican-US boarder when he shot a killed Sergio Hernandez, who was on the Mexican side of the border. The case raises the question of whether a plaintiff who plausibly alleges that a federal law enforcement officer violated Fourth and Fifth amendment rights while serving within the official scope of employment can sue for damages under Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics. In Bivens the Supreme Court ruled that lawsuits seeking damages from federal officials for violating the Constitution could move forward.
This is the second time the court has entertained this case. In 2017 the Supreme Court sent the case back to the US Court of Appeals for the Fifth Circuit requesting the court reconsider in light of an earlier decision that disallowed the claims by the teenager’s family.
Counsel for the Hernandez family argued Tuesday:
The government’s assertion that permitting Petitioners’ suit would dramatically undermine U.S. foreign relations and diplomacy is belied by the long history of successful tort claims against federal law enforcement officers, including, … cases in which the victim was a foreigner harmed on foreign soil, the Court awarded damages, and the diplomatic sky did not fall. … Not only was Respondent standing on U.S. soil when he pulled the trigger, but he could not have known in that instant where the bullet would even land, let alone the nationality of anyone it might hit.