The Supreme Court rejected by a 5-4 vote the Trump administration’s decision to end the Deferred Action for Childhood Arrivals (DACA) program initiated by President Obama in 2012 unilaterally via an executive order. In an opinion written largely by Chief Justice John Roberts, the Court held that the Trump administration’s action reversing Obama’s executive order was “arbitrary and capricious.” The administration needed to go back to square one and come up with a better rationale for its decision, the Court ruled. Roberts and the liberal foursome, with whom he is increasingly aligning himself, were the ones who reached an “arbitrary and capricious” decision. They threw judicial restraint to the wind.
Just as Chief Justice Roberts had done in upholding the constitutionality of Obamacare on dubious legal grounds, he joined his four liberal colleagues in twisting the law to reach a desired policy outcome on behalf of the illegal immigrant “Dreamers.” Roberts is morphing into another in the line of Republican appointees to the Supreme Court who represented themselves as conservative jurists but have sided more and more frequently with the liberal bloc once they secured their lifetime seats on the Court.
In this case, Roberts used a pseudo-technical interpretation of the Administrative Procedure Act (APA) to conclude that the Trump administration’s decision to rescind Obama’s DACA executive order did not meet the APA’s standards requiring “a reasoned explanation for its action.” To the contrary, President Trump had a compelling reason to reverse, by his own executive order, the executive order of his predecessor with which he had sharp disagreement on legal as well as policy grounds. President Trump believed that Obama had exceeded his legal authority in issuing his DACA order in the first place and did not want to expend federal resources in defending the DACA order against anticipated legal challenges. Such allocation of executive resources and balancing the risks of litigation against the executive department are entirely within his discretion as the nation’s chief executive officer.
Obama’s DACA program had granted young immigrants who were brought to the U.S. illegally as children the right to work and stay in the U.S. without fear of deportation. DACA recipients also became eligible for other benefits. The so-called “Dreamers,“ many of whom are now adults, were in the country illegally when Obama unilaterally decided to “legislate” their temporary legal status and conferral of benefits through executive action. DACA altered how the immigration laws applied to this large class of illegal aliens.
Never mind that the Trump administration was on solid ground in concluding that Obama had exceeded his constitutional authority in issuing his DACA executive order in the first place. The Chief Justice sidestepped this fundamental legal issue. He placed more importance on the DACA recipients’ reliance on Obama’s order that even Obama himself had previously doubted he had the constitutional authority to issue on his own. Roberts for all intents and purposes stepped out of his judicial role and stepped into the shoes of an advocate for illegal immigrants. Never mind, as Justice Clarence Thomas put it in his dissenting opinion, that “the Trump administration rescinded DACA the same way that the Obama administration created it: unilaterally, and through a mere memorandum.” According to Roberts’ “reasoning,” the Trump administration must do a better job explaining the rationale of its rescission of Obama’s DACA executive order than the Obama administration had done originally in justifying the DACA order itself.
“Chief Justice Roberts does it again, convoluting the law to appease the D.C. establishment,” Representative Jim Jordan (R-OH), Ranking Member of the House Judiciary Committee, said in reaction to the Supreme Court’s DACA decision. “By ruling that President Trump cannot terminate DACA in the same manner that President Obama used to start it, the Court’s decision creates two standards of executive power: one for President Obama and another for President Trump.”
One president’s executive order is not the equivalent of legislation duly passed by Congress and signed by the president that is legally binding on the next president. It is not even a regulation that has gone through an extensive public comment process and complied with other rigorous procedural requirements. The next president is free to exercise his own executive authority to either accept his predecessor’s executive order, rescind it, or replace it with another order of his own. President Trump’s executive order did nothing more than restore conditions for the “Dreamers” to the way they were before Obama issued his DACA executive fiat without Congressional authorization or even the rigorous procedural processes required for lawful regulations.
In reversing Obama’s executive order with his own executive order, President Trump first gave Congress the opportunity to take up the “Dreamers” issue in new legislation where making such significant changes in immigration law policy belongs. Congress has failed so far to pass such remedial legislation that would be acceptable to the Trump administration. The judiciary has no business injecting itself into a political dispute over immigration policy between the legislative and executive branches. But that is precisely what Chief Justice Roberts has now done in joining once again with the liberal wing of the Court that likes to legislate their policy preferences from the bench.
As Chief Justice Roberts admitted in his opinion, “DACA was rescinded because of the Attorney General’s illegality determination.” That should have been the end of the case. But Roberts and his liberal colleagues ignored the core issue of DACA’s illegality. They decided to legitimize Obama’s illegitimate executive order for politically expedient reasons.
The administration should have assessed “the conspicuous issues of whether to retain forbearance and what if anything to do about the hardship to DACA recipients,” Roberts wrote in remanding the matter to the Department of Homeland Security (DHS) “so that it may consider the problem anew.” It is not up to the Supreme Court to prescribe policy options that the executive branch must consider in order to save a legally defective executive order from a prior administration.
Justice Clarence Thomas saw right through Chief Justice Roberts’ sophistry. Justice Thomas undertook the careful analysis of federal immigration law and the limits of its delegation of authority to the executive branch that Chief Justice Roberts neglected to do. The Obama administration lacked the “authority from Congress to either reclassify removable DACA recipients as lawfully present, or to exempt the entire class of aliens covered by DACA from statutory removal procedures,” Justice Thomas wrote in his dissent. “No party disputes that the immigration statutes lack an express delegation to accomplish either result. And, an examination of the highly reticulated immigration regime makes clear that DHS has no implicit discretion to create new classes of lawful presence or to grant relief from removal out of whole cloth. Accordingly, DACA is substantively unlawful.”
Justice Thomas also warned of dangerous consequences that may flow from the Roberts majority opinion. “Under the auspices of today’s decision, administrations can bind their successors by unlawfully adopting significant legal changes through Executive Branch agency memoranda,” Justice Thomas wrote. “Even if the agency lacked authority to effectuate the changes, the changes cannot be undone by the same agency in a successor administration unless the successor provides sufficient policy justifications to the satisfaction of this Court. In other words, the majority erroneously holds that the agency is not only permitted, but required, to continue administering unlawful programs that it inherited from a previous administration.”
Chief Justice Roberts has claimed to have great concern for ensuring public acceptance of the legitimacy of the Supreme Court. “In our branch, our job is to interpret the law and ensure compliance with the Constitution,” Roberts said last September. “We will decide cases according to the Constitution and our laws, without fear or favor.” The Chief Justice flunked this standard with his DACA opinion and placed the legitimacy of the Supreme Court’s rulings on hot button issues in further jeopardy.
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