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.