SCOTUS Hands Trump DACA Defeat

Donald Trump would be a more effective and dangerous President if he and his team were more competent.

A second big ruling from the Supreme Court this week where a conservative Justice writes an opinion unfavorable to conservatives.

AP (“Court rejects Trump bid to end young immigrants’ protections“):

The Supreme Court on Thursday rejected President Donald Trump’s effort to end legal protections for 650,000 young immigrants, his second stunning election-season rebuke from the court in a week after Monday’s ruling that it’s illegal to fire people because they’re gay or transgender.

For now, the young immigrants retain their protection from deportation and their authorization to work in the United States.

The 5-4 outcome, in which Chief Justice John Roberts and the four liberal justices were in the majority, seems certain to elevate the issue in Trump’s campaign, given the anti-immigrant rhetoric of his first presidential run in 2016 and immigration restrictions his administration has imposed since then.

The justices rejected administration arguments that the 8-year-old Deferred Action for Childhood Arrivals Program is illegal and that courts have no role to play in reviewing the decision to end DACA. The program covers people who have been in the United States since they were children and are in the country illegally. In some cases, they have no memory of any home other than the U.S.

Trump didn’t hold back in his assessment of the court’s work, hitting hard at a political angle.

“These horrible & politically charged decisions coming out of the Supreme Court are shotgun blasts into the face of people that are proud to call themselves Republicans or Conservatives. We need more Justices or we will lose our 2nd Amendment & everything else. Vote Trump 2020!” he wrote on Twitter, apparently including the LGBT ruling as well.

WaPo (“Supreme Court blocks Trump’s bid to end DACA, a win for undocumented ‘Dreamers’“) begins with similar analysis but gets into the reasoning:

The administration has tried for more than two years to “wind down” the Deferred Action for Childhood Arrivals (DACA) program, announced by President Barack Obama in 2012 to protect from deportation qualified young immigrants. Former Attorney General Jeff Sessions advised the new Trump administration to end it, saying it was illegal.

But, as lower courts had found, Roberts said the administration did not follow procedures required by law, and did not properly weigh how ending the program would affect those who had come to rely on its protections against deportation, and the ability to work legally.

“We do not decide whether DACA or its rescission are sound policies,” Roberts wrote.

He added: “We address only whether the [Department of Homeland Security] complied with the procedural requirement that it provide a reasoned explanation for its action. Here the agency failed to consider the conspicuous issues of whether to retain forbearance and what if anything to do about the hardship to DACA recipients. That dual failure raises doubts about whether the agency appreciated the scope of its discretion or exercised that discretion in a reasonable manner.”

[…]

The court’s four most conservative justices dissented. Justice Clarence Thomas said the program was illegal, and that the court should have recognized that rather than extending the legal fight.

“Today’s decision must be recognized for what it is: an effort to avoid a politically controversial but legally correct decision,” Thomas wrote. “The court could have made clear that the solution respondents seek must come from the legislative branch.”

Instead, he said, the court provided a “stopgap” measure to protect DACA recipients, and “has given the green light for future political battles to be fought in this court rather than where they rightfully belong — the political branches.”

NYT (“Trump Can’t Immediately End DACA, Supreme Court Rules“) similarly began with the politics and got to the rationale:

[T]he justifications the government gave, Chief Justice Roberts wrote, were insufficient. He said the administration may try again to provide adequate reasons for shutting down the program.

[…]

The program was announced by President Barack Obama in 2012. It allows young people brought to the United States as children to apply for a temporary status that shields them from deportation and allows them to work. The status lasts for two years and is renewable, but it does not provide a path to citizenship.

The court’s ruling means the Trump administration officials will have to provide a lower court with a more robust justification for ending the program. That process is likely to take many months, putting the administration’s assault on the program in limbo until after the November election.

It will also put on hold any plans to round up more than 700,000 young immigrants — many of whom have been living in the United States since they were small children — and deport them to foreign countries they may not even remember.

In the past, Mr. Trump has praised the program’s goals and suggested he wanted to preserve it. “Does anybody really want to throw out good, educated and accomplished young people who have jobs, some serving in the military?” he asked in a 2017 Twitter post.

But Mr. Trump sometimes struck a different tone. “Many of the people in DACA, no longer very young, are far from ‘angels,'” he wrote on Twitter last year as the Supreme Court prepared to hear arguments in the case. “Some are very tough, hardened criminals.”

I’m not a lawyer, or even an amateur student of immigration law, so have no strong opinion on whether Obama’s order was “illegal.” I found it a frustrating example of executive overreach, enacting a policy he favored unilaterally after he was unable to get it through Congress. That’s not how our system should work. (Although, granted, it mostly just doesn’t work, period, given Republican recalcitrance to cooperate in any way with Democrats. But officials take an oath to the Constitution.)

But the sheer incompetence and fecklessness of the Trump administration has taught me something I should have known but didn’t. The fact that Obama enacted this policy by executive order doesn’t mean that Trump can simply undo it with the stroke of a pen.

While I’m sure I learned about the Administrative Procedure Act at some point among the various graduate public policy courses I took way back in 1987-1988, certainly in the Administrative Law class, I’d all but forgotten it.* Why? Because, with incredibly rare exceptions,** every President in my lifetime has simply followed it. They’ve staffed their administrations with competent officials who told them what procedures they had to go through to accomplish their goals and then listened to them.

Time after time, Trump has been frustrated in enacting policy outcomes that he was perfectly entitled to enact because he governs like a toddler rather than a professional politician. On everything from the so-called ‘Muslim ban’ to putting a citizenship question on the Census to DACA, he has been slapped down time and again by the courts for not following the APA.

That’s great for those of us who oppose his policies. But hopefully this will be a lesson to future Presidents to dot their i’s and cross their t’s to avoid having their work undone by the courts.***

__________________________

*A search reveals 65 posts in the 17-1/-year history of the site mentioning the APA. All but five have come since Trump took office.

**For example, the Obama administration was slapped down by the 5th Circuit for failure to follow the APA for the predecessor to DACA. The Supreme Court accepted the case in early 2016 but deadocked 4-4 in June, as the case was heard after Justice Scalia’s death, thus sustaining the 5th’s decision.

***Also, as some other cases taught us, it also helps not to go on Twitter issuing explanations for one’s policies that differ from the official rationale being used to justify its rationality under the APA.

FILED UNDER: Borders and Immigration, Donald Trump, Law and the Courts, Supreme Court
James Joyner
About James Joyner
James Joyner is Professor and Department Head of Security Studies at Marine Corps University's Command and Staff College and a nonresident senior fellow at the Scowcroft Center for Strategy and Security at the Atlantic Council. He's a former Army officer and Desert Storm vet. Views expressed here are his own. Follow James on Twitter @DrJJoyner.

Comments

  1. Michael Reynolds says:

    For some reason this made me laugh:

    While I’m sure I learned about the Administrative Procedure Act

    Just taking all the easy courses, weren’t you?

    Yep, once again, we are saved by the imbecility of the Mango Mussolini.

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  2. CSK says:

    By “We need more Justices” I assume Trump means that he needs to make more appointments to the Supreme Court.

    I enjoyed the not-so-subtle threat/warning about the Second Amendment being repealed if he, Donald J. Trump, is not re-elected in November.

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  3. Jay L Gischer says:

    The reference to the 2nd Amendment makes me laugh, and then cry.

    I won a bet with a friend who is a gun enthusiast, and instructor (I know him through my martial arts). After Obama’s election in 2008, he thought that the Democrats would pass massive gun control legislation (that’s what his media ecosystem told him). I bet him 20 bucks that we would not see any gun control legislation from Congress in the next year. Of course, I won the bet.

    And yet they keep waving this bogeyman around. And it seems to work on some people. I guess the people it works on don’t have friends like me.

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  4. CSK says:

    Oh, dear God. Trump is now boasting that “I made Juneteenth very famous.” I kid you not. Despite never having heard of it before last week, he’s made it famous.

    In a horrible way, he may be right. I can’t imagine Cult45 knew about it.

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  5. Jay L Gischer says:

    In some ways, this is a great example of why I am very reluctant to elect a business leader to an executive government position (they won’t want a legislative position!). They usually have a hard time wrapping their heads around the fact they can’t just say “do it!” and have it get done.

    There are lots of people in the government that they can’t fire if they don’t do what Mr. Boss says. There are some, of course, but that’s usually not enough. There are also legislators and judges and civil-service protections. But Madame Executive is not used to this, and will probably have a hard time adapting to it.

    It’s also why I’m now kind of sour on the whole “elect an outsider” business. Outsiders have no idea. Some will be quick studies, to be sure.

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  6. CSK says:

    @Jay L Gischer:
    People who claim they don’t want a politician to be president forget that it’s a political job.

    Trump is an unusually horrible example of a business executive, in that he’s never had to answer to a board nor to stockholders. There have never been any brakes on him. Add that to his gross temperamental, psychological, intellectual, and educational deficiencies, and you get a disaster. Which we did.

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  7. Jon says:

    @CSK: Holy crap. I was hoping you were exaggerating, at least a little.

    “I did something good: I made Juneteenth very famous,” Trump told the Journal. “It’s actually an important event, an important time. But nobody had ever heard of it.”

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  8. Kathy says:

    It’s possible El PITO can claim all the winning he promised, if we assume he did not specify who would be doing all the winning.

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  9. CSK says:

    @Jon:
    It’s impossible to exaggerate the staggering bad taste of anything Trump says.

    Remember this is the guy whose response, when asked if he’d read Lori Klausutis’s widower’s plea to him to stop accusing Joe Scarborough of murdering her, was “I’m sure the family wants to get to the bottom of it.”

    It’s not so much that Trump hears what he wants to hear. It’s that he invents what he wants to hear.

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  10. An Interested Party says:

    Ahh, after these two decisions which I’m sure many of them disagree with, what Republicans/conservatives must be thinking of John Roberts… *snicker*

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  11. Kylopod says:

    @Jay L Gischer:

    In some ways, this is a great example of why I am very reluctant to elect a business leader to an executive government position (they won’t want a legislative position!). They usually have a hard time wrapping their heads around the fact they can’t just say “do it!” and have it get done.

    While I agree that running a business doesn’t prepare a person for the presidency, the fact is that Trump isn’t a good test case, since on top of things he’s a lousy businessman. If we elected a Bill Gates or Warren Buffett, I suspect they’d be far more competent at the job than Trump has been (which doesn’t mean they’d actually be successful at it, just that they, unlike Trump, actually have a brain and a capacity to learn new things).

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  12. JohnMcC says:

    @Jay L Gischer: This strange seeming conjunction of 2d Amendment with DACA was explained by the commenters at Wonkette. You see, if 700,000 Mexicans are allowed to remain in the U.S. they’ll want to buy guns. So it will be necessary to restrict gun purchases.

    What could be more obvious?

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  13. Sleeping Dog says:

    The court’s four most conservative justices dissented. Justice Clarence Thomas said the program was illegal, and that the court should have recognized that rather than extending the legal fight.

    “Today’s decision must be recognized for what it is: an effort to avoid a politically controversial but legally correct decision,” Thomas wrote. “The court could have made clear that the solution respondents seek must come from the legislative branch.”

    Advocating legislating from the bench are we Clarence?

    My understanding is that the case brought to the SC by Tiny’s admin was an appeal of a lower court finding that the Admin had not followed the APA, not the legality of DACA. The lower court never ruled on the legality of Obama’s exec order, for the SC to use this case to toss the order is an extreme case of judicial activism.

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  14. Kylopod says:

    @JohnMcC: Despite the lack of logical connection (as well as ignoring how gun-friendly the Roberts court already has been), it isn’t necessarily a bad move politically. The gun nuts are among the most rabid voters around, and inspiring them to flock to the polls (possibly carrying guns while doing it, in a not-too-subtle attempt at voter intimidation) is usually effective.

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  15. MarkedMan says:

    @Jay L Gischer:

    They usually have a hard time wrapping their heads around the fact they can’t just say “do it!” and have it get done.

    This was the reason why I was never going to vote for Ross Perot (well, other than I had a couple of friends that worked for his business and so knew it to be a vile, unethical company). He once was asked how he would resolve an impass over some legislation and he answered that he would lock the Speaker and Majority Leader in a room and wouldn’t let them leave until they had reached an agreement. Aside from the ludicrous idea that Tom Foley and George Mitchell would let him lock them in a room (what, was he going to have the Secret Service shoot them if they tried to escape?) this was so wrong and ridiculous on so many levels and showed such a childish understanding of the way Congress works that, to me, it was immediately disqualifying. It would be like someone coming in to take Don Shula’s coaching job and bragging about how his great strategy was only to score touchdowns and not bother with extra points or field goals because the touchdowns were worth more.

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  16. Kathy says:

    @Kylopod:

    Your closest real-life exemplar would be Bloomberg as Mayor of NYC.

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  17. Michael Cain says:

    @Jay L Gischer: At some point back in the days when Lee Iacocca was riding high some reporter asked him about running for president. “Not interested,” said Iacocca. “It would drive me crazy. Let me know when there’s an opening for Emperor, though.”

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  18. JohnMcC says:

    @Kylopod: Yep.

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  19. An Interested Party says:

    Time after time, Trump has been frustrated in enacting policy outcomes that he was perfectly entitled to enact because he governs like a toddler rather than a professional politician. On everything from the so-called ‘Muslim ban’ to putting a citizenship question on the Census to DACA, he has been slapped down time and again by the courts for not following the APA.

    I notice a lot of Republicans are more alarmed by this ruling then they are by Trump’s incompetence…I mean, this is the inept idiot that they want to lead their party? I know standards have dropped in this country, but really…

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  20. OzarkHillbilly says:

    @Sleeping Dog: The lower court never ruled on the legality of Obama’s exec order, for the SC to use this case to toss the order is an extreme case of judicial activism.

    This, time and again and again and again, this.

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  21. de stijl says:

    It really isn’t anyone’s fault but their own that R leaning lawyers suck at administrative law.

    It’s basic.

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  22. Beth says:

    @de stijl:

    It really isn’t anyone’s fault but their own that R leaning lawyers suck at administrative law.

    They don’t want it to exist, therefore it doesn’t exist. Because it doesn’t exist, they don’t need to learn how to use it.

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  23. Barry says:

    I’m wondering at Roberts’ lack of desire to start deporting 700,000 people who’ve lived here since they were in children.

    I know that The Base will pleasure themselves to videos of this, but it’s the sort of things to make everybody who is not an actual Satanist vote D.

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