Hundreds of thousands of undocumented immigrants whose fates will be determined by the Supreme Court are placing their trust in the hands of their lawyers including one seasoned veteran, and another who is a Dreamer just like them.
The Court is set to hear arguments Tuesday over President Barack Obama’s Deferred Action for Childhood Arrivals program, which protects people brought to the US as children from deportation. Theodore Olson, a veteran of 64 Supreme Court arguments who served as solicitor general under President George W. Bush, will take the lead defending the program, which the Trump administration seeks to terminate.
He’ll be joined as co-counsel by Luis Cortes, a 31-year-old graduate of the University of Idaho College of Law who’s never appeared before the justices. Unlike many advocates who sit at the wooden counsel’s table just a few feet from the justices, he’s not a graduate of an Ivy League school and he hasn’t served as a judicial law clerk. Tuesday will mark his first time inside the Supreme Court building.
But Cortes is himself a DACA recipient, bringing a crucial perspective into the courtroom and anchoring what can sometimes be an abstract debate in the very concrete reality of his presence. It’s his future that hangs in the balance, too.
“A lot is at stake for me individually,” he said. “I will be looking at nine individuals who will ultimately decide whether my clients will be deported and me with them.”
Cortes came to the US with his parents from Mexico when he was a year old and grew up in the San Francisco Bay area. He says he learned “little by little” that he was undocumented. In 8th grade, for instance, his class was going on a field trip to Europe, but his parents said he couldn’t go. He couldn’t get a driver’s license and couldn’t get financial aid to go to college.
But when his father, who worked in the fast food industry, tried to get legal immigration status and was instead deported, Cortes began to fully grasp the ramifications of his undocumented status. His father was sent back to Mexico leaving behind Cortes’ mother, a housecleaner, as well as Cortes and his younger siblings, who were born in the United States.
Cortes decided to pursue law school. After graduating from San Jose State, Cortes applied to Idaho because it was cheaper to pay for out-of-state tuition there than in-state tuition in California. Yet he almost dropped out wondering what good a law degree would do if he couldn’t get a job.
Then, after his second year, Obama announced DACA and everything changed.
“It was almost unbelievable,” said Cortes.
DACA provided not just work authorization “but the foundational building blocks for what it means to live life.” That included a Social Security card and the ability to get a driver’s license — both of which are at stake if DACA is rescinded. Cortes recently renewed his DACA status, so if the Court allows the Trump administration to phase out the program he would still have work authorization until 2021. After that, he doesn’t know what would happen.
“These nine justices hold my future,” Cortes said.
By now, he’s an expert in immigration law and knows that it is difficult to prevail in the deportation process. That’s how he met his clients, who are involved in one of the three DACA cases that have been consolidated before the Court.
Dozens and dozens of lawyers have been litigating the issue for months. Indeed, others will be at the counsel table with Olson and Cortes. California Solicitor General Michael Mongan, like Olson, will actually speak from the podium on behalf of the states that support the program. Yet while Cortes is less experienced than some members of the legal team, his presence at the table represents the heart of the case.
An array of amicus briefs in the case filed by the legal, education and business community attests to how Dreamers have become embedded in American culture. If the program is going to be wiped away, Olson will tell the justices, it can’t be done arbitrarily in violation of federal law.
Olson, 79, is a partner at the heavyweight firm Gibson, Dunn & Crutcher and has solid conservative credentials. He served in the Reagan administration, and as private counsel to Ronald W. Reagan and George W. Bush. He argued Bush v. Gore in the case that decided the 2000 presidential election. He sits on the Board of Visitors of the conservative Federalist Society.
Olson has the respect of the conservative justices and will work to convince them that the case they are deciding concerns not whether the Trump administration could end the program, but how it chose to do so.
“Before the government can terminate DACA, the public deserves — and the law requires — that the government explain its decision clearly and accurately,” Olson told CNN, outlining an argument aimed at some conservative justices.
Lower courts have allowed renewals in the program to continue pending appeal.
Olson will be up against the Trump administration, which will argue it was within its authority to end the program and has lambasted the lower courts for issuing nationwide injunctions allowing it to go forward until now.
“This is a rule of law question, not a conservative or liberal issue,” Olson contends.
A few years ago, he surprised many who had worked with him during republican administrations by arguing and winning a case in favor of same sex marriage. In the DACA case he plans to focus solely on how the government acted.
“The government claims that it had no choice because DACA is unlawful, even though it is consistent with seventy years of similar deferred action immigration policies carried out by presidential administrations of both political parties,” Olson said. He charged the government with trying to “avoid responsibility for its decision.”
If the court rules in favor of the government, Cortes says a part of him will feel betrayed.
“If it gets to the point that I’m deported, it would also mean that Congress wouldn’t have acted within the next two years,” he said.
“The United States is an amazing place to live,” he added. “Unlike any other place.”