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.