Weird that they’d let the executive reverse an executive-branch policy.
The usual caveat: You never can tell what the Court’s going to do based on the tenor of oral arguments, especially a Court led by a justice who’s known to have mysterious changes of heart during the deliberation process as his anxiety grows about the Court being seen as a partisan institution. If we’re headed for a 5-4 conservative win for Trump on DACA, who among us would bet heavily against John Roberts changing his mind and deciding that the liberals have the better of the argument after all?
SCOTUSblog has essential background on the case’s legal posture. The wrinkle in Trump’s plan to cancel DACA is one of the right’s least favorite statutes, the Administrative Procedure Act. The APA says that courts should show deference to decisions made by a federal agency, in this case DHS, but that the agency can’t make policy for “arbitrary and capricious” reasons. If the White House wants to cancel DACA, it needs a reasonable explanation to do so. We have one, says the White House: We think it’s illegal, a matter of executive overreach by Barack Obama in exercising a power over immigration that he doesn’t properly have. To which DACA recipients reply: Let’s test that theory in court, shall we? When SCOTUS says DACA is illegal, then it’s illegal. Not a moment sooner.
Two questions faced the Court today, then. First, is DHS’s decision to end DACA even reviewable in the first place? I.e. if DHS thinks DACA is unconstitutional, is their judgment good enough to suffice for the APA? Second, if the decision is reviewable, does SCOTUS agree that DHS’s reason for ending the program was reasonable rather than “arbitrary and capricious”? I.e. is DACA actually unconstitutional? According to reporters who watched this morning’s arguments, it seems likely there are five votes for DHS on the second question, at least. Both Neil Gorsuch and Brett Kavanaugh appeared duly skeptical:
Several of the five conservative justices appeared skeptical that courts can even review the Republican president’s 2017 plan to end the Deferred Action for Childhood Arrivals (DACA) program, which had been implemented in 2012 by his Democratic predecessor Barack Obama. Even if the court finds that it can be reviewed, conservative justices indicated they think Trump’s administration gave a reasonable explanation for its decision…
Kavanaugh said there is no reason to think that the administration’s consideration of the impact its decision would have on individuals, when weighed against its contention that the DACA program was unlawful from the beginning, was anything other than a “considered decision.”…
Gorsuch pressed an attorney representing supporters of DACA about the limits on courts to second guess decisions by federal agencies that are within their discretion to make. Gorsuch also seemed skeptical that the administration had not adequately addressed its reasons for rescinding the program, as DACA advocates have argued.
“What good would another five years of litigation … serve?” said Gorsuch at one point, wondering why the Court should send the case back down if all sides agree that DHS is entitled to end the program once it provides a more considered explanation for doing so. He and the conservative wing may have bigger game in their sights than just DACA here, though. This is an opportunity to rein in the administrative state writ large by limiting the APA’s power to restrain agencies in policymaking. If the Court found that DHS’s decision was unreviewable, that might free up various arms of the federal government to operate with less fear of litigation.
Gorsuch also reportedly pressed the petitioners’ attorney, Ted Olson, for a “legal limiting principle” in cases where an agency wants to undo a policy it had previously set, which gets right to the heart of the matter: How can one president be forced to abide by an executive policy set by his predecessor? It’s one thing for Congress to bind the White House by passing legislation, but DACA is executive action. If Trump signed an order banning future DACA-like programs that would spare vast numbers of people from deportation, would Joe Biden be bound by that order unless he provided some ornate justification for reversing it beyond “that’s not fair”?
How about the fifth vote, though? John Roberts also spoke up during arguments according to Reuters, questioning “whether there was much more that needed to be added to the administration’s rationale even if the court were to rule in favor of the challengers and send the issue back for further review.” And that’s not all:
At several points, Roberts suggested that the Trump administration may be on firm ground in thinking DACA was illegal. He noted that a similar, more far-reaching Obama immigration order — protecting immigrants who are parents of some U.S. citizens or lawful residents — had been blocked by the 5th Circuit and the Supreme Court in a tie vote. “Isn’t that enough?” Roberts asked.
Roberts apparently did not seem to agree with some of his conservative colleagues that DHS’s decision was unreviewable in the first place but it sounds like he’s with them on the narrower question of whether DHS was justified in ending the program. That feels like a politic compromise for a politically minded jurist like Roberts — he’ll hand Trump a win on DACA but not a sweeping win that would undermine the APA itself. But you never know: Remember that Roberts was the deciding vote in the case involving putting a citizenship question on the census and ended up siding with the liberals there on grounds that the administration never provided a convincing justification for why they wanted to include the question. If he gets cold feet this time too, he might find a reason why the White House’s argument for ending DACA is also deficient.
Exit question: If there are hardened criminals participating in DACA, why on earth would we make a deal with Democrats to legalize them?