The Court rules the administration cannot do away with DACA, which allows undocumented immigrants who in many cases were brought to the U.S. as children by their parents and grew up here, to stay in the country indefinitely.
At least not for the time being...
But the decision, which we’ve linked to here, has absolutely nothing to do with the merits of the DACA program, which was established by President Obama by executive order. And since it’s not a law, Presidents can undo other Presidents’ executive decisions. The Supreme Court did not dispute this.
Instead, the decision has everything to do with Trump’s folks flouting the law, not doing the work, and expecting the Court to side with them anyway, now that Trump’s got a couple of “his guys” on the Court. (And both Trump appointees would indeed have given the President what he wanted but for different reasons, which we’ll get to in a sec.)
Yes, that’s an oversimplification of what brought the Supreme Court to this decision. And pretty much everything we’re going to say today is an oversimplification because the decision, while not exactly complex in and of itself, is very complicated.
Chief Justice John Roberts wrote the majority opinion (and his was the deciding vote in the 5-4 decision).
And as we said, he doesn’t dispute the President had the right to do what he wanted to do, writing:
“The dispute before the Court is not whether [the Department of Homeland Security] may rescind DACA. All parties agree that it may.”
So with that in mind, how did the Court get to this decision?
It’s a story of three memos.
- The first, a letter really, written by former Attorney General Jeff Sessions, putting the wheels in motion for DACA to be nixed. Sessions’ only reasoning in the letter to the Department of Homeland Security, really, was that he has a “duty” to kill it. Lots of Attorneys General from Republican-controlled states were already suing to force the same outcome. Sessions also pointed to part of a decision in a sort of similar case as justification.
- Then, the acting Director of Homeland Security put out a memo, detailing how the program would be ended. Again referring to the same ruling in the same case as further justification that DACA is illegal. This is where things started getting really bumpy. As Chief Justice Roberts describes it: “Acting Secretary Duke rested the rescission on the conclusion that DACA is unlawful. Period.”
- So 9 months later, then Homeland Security Chief Kirstjen Nielsen tried to fix it by putting out a third memo, coming up with a lot of new reasons why DACA should be overturned. And even suggested it might not be illegal, but should still be overturned.
But according to Roberts, that third memo didn’t count, because:
“It is a ‘foundational principle of administrative law’ that judicial review of agency action is limited to ‘the grounds that the agency invoked when it took the action.’”
And since the first and second memos didn’t establish sufficient reason to cancel DACA, it can’t be cancelled unless and until Trump’s folks come back and do it again, with better reasons off the bat.
What it all comes down to really, as Roberts says:
“We do not decide whether DACA or its rescission are sound policies. ‘The wisdom’ of those decisions ‘is none of our concern’….We address only whether the agency complied with the procedural requirement that it provide a reasoned explanation for its action.”
In other words, the administration’s got to provide a better reason than “because we say so”.
Three Conservative Justices would’ve simply accepted Trump’s move to kill DACA. Justice Clarence Thomas speaking for them, contending this is:
“An effort to avoid a politically controversial but legally correct decision.”
While Justice Kavanaugh favored Trump’s position for a different reason: the after-the-fact explanations should’ve been considered since they likely will be anyway in the future.
So in the end, all this results in a great but imperfect victory for the people protected by DACA, because while keeping the program alive, it also provides a path for Trump to kill it, should he be re-elected, or possibly even before.
This isn’t the first time Chief Justice John Roberts has ruled against the Trump administration essentially because its work was disingenuous and sloppy. He played a similar role in the decision to keep a citizenship question off of the 2020 Census, not because the Trump Administration didn’t have the right to put it on, but because they lied about the reason they wanted it on.
Trump has often said he wants to extend DACA protections, but has also freely used people covered by DACA as bargaining chips in efforts to get other super-stringent immigration laws passed, as well as money for his wall. In other words, he’s tried to use something he says he wants as leverage to get something else he says he wants. Win-win. Unless you’re a person whose life in the U.S. literally hangs in the balance.
Which makes the response from the current Acting Secretary of Homeland Security, Chad Wolf, especially puzzling to us. He said:
“DACA recipients deserve closure and finality surrounding their status here in the U.S. Unfortunately, today’s Supreme Court decision fails to provide that certainty.”
Well, we’re not sure sure that’s true if that “finality” means we’d suddenly be subject to deportation to country we don’t even remember.
Trump’s knee-jerk response meanwhile, was to somehow twist it into being about fear and guns. Even though this case is about as far from the 2nd Amendment as you can get. Still, if Trump can convince a bunch of people that the Supreme Court is still too liberal, and he needs to be re-elected just because of that…Well, hell, it might just work.
Just like Trump immediately blamed the most extreme violence that happened alongside protests during the past couple of weeks exclusively on “Antifa”. Including the murder of a federal courthouse officer in Oakland, California, which Trump expressly pinned on the “Radical Left”.
Now arrests have been made. And it turns out the alleged shooter and his accomplice are members of a Far-Right group. Now Trump’s silent.