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by | Jul 27, 2020

Video 1

Video 1: “Supreme Court Blocks Trump from Ending DACA”

 Note: In addition to the video, please see the following article included at the above-referenced internet address: 

“Supreme Court Blocks Trump from Ending DACA”

According to the article, the United States Supreme Court handed President Donald Trump a major defeat recently, blocking his 2017 decision to immediately end the Deferred Action for Childhood Arrivals program, or DACA.

The majority opinion, written by Chief Justice John Roberts, rejects Trump’s rationale for canceling the program as “arbitrary and capricious” in violation of federal law.

Roberts said there’s no question the president has the power to end DACA, but that the issue was with how he did it — leaving the door open for the administration to make another attempt at cancelling the program.

“We do not decide whether DACA or its rescission are sound policies,” Roberts wrote. “We address only whether the agency complied with the procedural requirement that it provide a reasoned explanation for its action. Here the agency failed.”

By a 5-4 vote, Roberts joined the court’s liberals in faulting the Department of Homeland Security for ignoring “conspicuous issues” of “hardship” that ending DACA would have on recipients, especially those serving in the U.S. military, undergoing medical treatments or studying in school.

“Today’s decision is completely monumental,” said Krissia Rivera, a 27-year-old DACA recipient and fourth-year medical school student at Brown University. “This decision means that I will be able to apply to residency programs and hopefully achieve my dream of becoming a surgeon”

DACA began under President Barack Obama in 2012 and allows young people who were brought to the U.S. illegally as children to stay in the country and work without being deported on a two-year, renewable term. As of March 31, 2020, 640,000 people have active DACA status, and since 2012, more than 825,000 people have utilized the program.

In dissent, Justice Clarence Thomas said the court was making a huge mistake. “The Trump administration rescinded DACA the same way that the Obama administration created it,” he wrote, “unilaterally and through a mere memorandum.”

Thomas wrote that Congress, not the courts, should enact a solution for the so-called “Dreamers,” named after the DREAM Act that would have provided similar protections but never passed Congress.

“DACA was always meant to be a temporary solution; lasting protection for ‘Dreamers’ really would require legislation,” said ABC News Supreme Court contributor Kate Shaw. “The administration and the dissenting justices basically said this is something that the Trump administration had the power to do.”

Congress has tried and failed more than a dozen times to enact protections for “Dreamers,” despite strong public support for initiatives aimed at extending legal status to young immigrants.

President Donald Trump, who once said he had “great heart” for “Dreamers,” blasted the Supreme Court for a “horrible and politically charged” opinion and vowing to try again at ending the program his predecessor created.

“Now we have to start this process all over again,” Trump wrote on Twitter.

Legal and immigration experts said any effort to end the program now would be unlikely to take effect before the November election.

Chief Justice Roberts, a conservative who sometimes sides with the liberal justices in cases with major political consequences for the nation and the court, was joined in the opinion by Justices Ruth Bader Ginsburg, Stephen Breyer and Elena Kagan. Justice Sonia Sotomayor joined the majority in all but one part and filed an opinion as well.

Political conservatives lashed out at Roberts, who for the second time this week joined with the liberals on a major decision. “Chief Justice Roberts once again has failed to stand up for the institutional interests of the Court by allowing it to be weaponized for partisan ends,” said Carrie Severino, president of the Judicial Crisis Network, a conservative advocacy group.

Republican Senator Ted Cruz attacked the court in a speech on the Senate floor, calling the decision “lawless.” “It was gamesmanship. It was contrary to the judicial oath,” he said.

Justice Clarence Thomas’ dissent was joined in part by Justices Samuel Alito and Neil Gorsuch. Additionally, Justice Brett Kavanaugh filed an opinion concurring and dissenting in part.

“We know that this is a temporary victory,” said Greisa Martinez, a 30-year-old DACA recipient and deputy executive director of United We Dream, an advocacy group. “Everyone that can vote needs to vote this November to make sure that Donald Trump doesn’t get to make the decision of taking DACA away again.”

Presumptive Democratic presidential nominee Joe Biden in a statement pledged to “immediately work to make [protections for Dreamers] permanent by sending a bill to Congress on day one” if he wins the White House.

Senate Democratic Leader Chuck Schumer told DACA recipients celebrating outside the Supreme Court that he wants them to have citizenship. “This is just the beginning,” Schumer said. “You are going to become American citizens and great American citizens at that.”

Former President Barack Obama tweeted in support of the young immigrants. “Eight years ago this week, we protected young people who were raised as part of our American family from deportation. Today, I’m happy for them, their families, and all of us. We may look different and come from everywhere, but what makes us American are our shared ideals,” Obama posted on Twitter.

Trump made cracking down on immigration and terminating DACA a central campaign issue when he ran for president starting in 2015. Over the course of his campaign, Trump specifically targeted Mexican people, infamously referring to Mexicans who come to the United States, saying, “They’re bringing drugs. They’re bringing crime. They’re rapists.”

Sotomayor quoted that line in her concurring opinion, in which she took issue with the majority opinion finding that Trump’s decision to end DACA was not “motivated by animus.”

“But the impact of the policy decision must be viewed in the context of the President’s public statements on and off the campaign trail,” Sotomayor argues. “At the motion-to-dismiss stage, 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.”

Many DACA recipients said they are breathing a sigh of relief after a tense, years-long legal battle.

“I was quite relieved knowing that I won’t receive an order for deportation in the mail anytime soon,” said Eduardo Zarate, 20, a junior at Wyoming University in Jackson. “More importantly, I was very relieved knowing that I’m able to continue my education without worrying about deportation.”

Luis Zuluaga, a 23-year-old DACA recipient from Colombia and recent college graduate, said the fight for “Dreamers” is once again a political one.

“This country hasn’t gone anywhere near solving its immigration problem. This is just another Band-Aid, which is nice for the moment but it’s not enough,” he said.

Discussion Questions

  1. Describe the Deferred Action for Childhood Arrivals (DACA) program. 

As indicated in Teaching Tip 1 (“What Is DACA? And How Did It End Up in the Supreme Court?”) included later in this newsletter, the Deferred Action for Childhood Arrivals (DACA) program was introduced in 2012 by President Barack Obama as a stopgap measure to shield from deportation people who were brought into the United States as children and did not have citizenship or legal residency status. The protection lasts for two (2) years at a time and is renewable. The program does not provide a pathway to citizenship. Participation in the program comes with a range of benefits. Along with permission to remain in the country, recipients can also get work permits, and can obtain health insurance from employers who offer it. 

  1. As indicated in the article, United States Supreme Court Chief Justice John Roberts, who wrote the majority opinion in this case, concluded that President Trump’s decision to end the DACA program was “arbitrary and capricious.” What did Chief Justice Roberts mean by this?

By indicating that President Trump’s decision to end the DACA program was “arbitrary and capricious,” Chief Justice Roberts was opining that the decision was not based on substantive reasoning. In his opinion, Chief Justice Roberts did not state that President Trump did not have the authority to end the program; instead, he indicated that President Trump must provide a sound, justifiable and articulable reason as to why he was ending the program.

  1. In your reasoned opinion, was the majority opinion in this case a correct one? Why or why not?

This is an opinion question, so student responses may vary.

Video 2

Video 2: “Employers Can’t Require COVID-19 Antibody Tests, EEOC Says”

 Note: In addition to the video, please see the following article also included at the above-referenced internet address:

“Employers Can’t Require COVID-19 Antibody Tests, EEOC Says”

According to the article, the Equal Employment Opportunity Commission made it clear that employers cannot force workers to take COVID-19 antibody tests, as businesses begin grappling with how to safely reopen amid the pandemic.

The federal group that enforces anti-discrimination laws said in a new post recently, however, that business leaders can require workers to take a viral test to determine whether they are actively infected.

The group also noted that employers can measure employees’ body temperatures, a practice adopted amid the pandemic by companies such as Amazon.

“An antibody test constitutes a medical examination under the ADA,” the commission wrote, referring to the Americans with Disability Act, noting that currently antibody tests do not meet the ADA’s “job related and consistent with business necessity” standards for employee medical examinations.

The commission also cited the U.S. Centers for Disease Control and Prevention’s Interim Guidelines, which state that antibody test results “should not be used to make decisions about returning to persons to the workplace.”

“The EEOC will continue to closely monitor CDC’s recommendations, and could update this discussion in response to changes in CDC’s recommendations,” the group said.

The news comes as a handful of states have rushed to reopen businesses, and health officials have seen a concerning rise in COVID-19 infections.

Discussion Questions

  1. Describe the Equal Employment Opportunity Commission (EEOC).

The Equal Employment Opportunity Commission (EEOC) is a federal administrative agency charged with the responsibility of regulating and enforcing the nation’s anti-discrimination laws.

  1. In your reasoned opinion, what is the rationale behind the EEOC’s decision that employers cannot force workers to take COVID-19 antibody tests?

This is an opinion question, so student responses may vary. In your author’s opinion, the foundational basis for the EEOC’s decision that employers cannot force workers to take COVID-19 antibody tests is that a person who has antibodies has already “beaten” the virus and is therefore not a risk to others (for example, coworkers). Since the employee is not a danger to others, his medical status is not discoverable by the employer.

  1. If employers cannot force workers to take COVID-19 antibody tests, why can they require workers to take a viral test to determine whether they are actively infected? Why can employers measure employees’ body temperatures?

In either instance, the employer’s action would be based on a good-faith attempt (and arguable legal obligation) to protect others who might encounter the employee in the work environment (for example, coworkers).