Just hours before the Supreme Court was scheduled to hear oral arguments on whether the White House can abruptly end the Deferred Action for Childhood Arrivals (DACA) policy, President Donald Trump on Tuesday jarringly misrepresented the program’s recipients as “hardened criminals” — while simultaneously stating his apparent willingness to make a deal that would allow them to remain in the country.
“Many of the people in DACA, no longer very young, are far from ‘angels.’ Some are very tough, hardened criminals,” Trump tweeted. “President [Barack] Obama said he had no legal right to sign order, but would anyway. If Supreme Court remedies with overturn, a deal will be made with Dems for them to stay!”
While it is true that many DACA recipients, commonly referred to as “Dreamers,” have aged since the program’s 2012 inception, the government’s administration guidelines explicitly prohibit what Trump calls “hardened criminals” from being eligible for the program.
Aside from the strict age and education requirements, under DACA guidelines, all applicants for the program must “have not been convicted of a felony, significant misdemeanor, or three or more other misdemeanors, and do not otherwise pose a threat to national security or public safety.” In other words, any individual one can reasonably characterize as a “hardened criminal” would not be eligible for DACA status.
According to the government’s own statistics from 2012-2018, less than eight-percent of DACA applicants who have been arrested or apprehended on suspicion of their involvement in a crime were approved to participate in the program. It’s important to note that an arrest or apprehension does not mean those individuals were convicted of any crimes, as any felony or significant misdemeanor conviction would immediately make them ineligible for the program. For example, 850 DACA recipients were eliminated from the program in 2017 due to criminal activity.
The U.S. Court of Appeals for the Fourth Circuit in May blocked the Trump administration’s attempt to rescind the DACA program, ruling that the decision was unlawfully “arbitrary and capricious” because the Administration failed to offer any plausible explanation for the determination.
As Law&Crime previously reported, Ted Olson, who has argued dozens of cases before the Supreme Court and served as solicitor general under President George W. Bush, is taking the lead in defending the program. He will be flanked by Luis Cortes, a 31-year-old lawyer who graduated from the University of Idaho College of Law. Cortes is himself a Dreamer.
According to seasoned Supreme Court litigator Ted Boutrous, Trump’s misleading Tuesday morning tweet could actually provide further evidence to support the notion that his administration’s decision to end DACA was, indeed, arbitrary and capricious.
The implementation of the Trump administration’s agenda has been hampered before by unconvincing rationales.
[Image via Win McNamee/Getty Images]
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