SCOTUS to take up DACA termination, with a big question to answer

The President announced some time ago that he planned to start winding down and eventually ending DACA (the “Deferred Action for Childhood Arrivals” program created by President Obama) if Congress failed to enact any sort of comprehensive immigration reform. As with virtually all of his executive orders, this one was immediately challenged and remains tied up in court to this day. Now, however, the Supreme Court has agreed to hear the case and put it to rest once and for all. But as the Associated Press explains, the outcome is far from certain.

The Supreme Court is taking up the Trump administration’s plan to end legal protections that shield 660,000 immigrants from deportation, a case with strong political overtones amid the 2020 presidential election campaign.

All eyes will be on Chief Justice John Roberts when the court hears arguments Tuesday. Roberts is the conservative justice closest to the court’s center who also is keenly aware of public perceptions of an ideologically divided court.

It’s the third time in three years that the administration is asking the justices to rescue a controversial policy that has been blocked by several lower courts.

The linked analysis correctly focuses on Chief Justice John Roberts. Despite being a Bush 43 appointee, Roberts has slowly evolved into being the new swing vote on the court, much like Kennedy was until his retirement. He’s expressed concerns over the appearance of an ideologically divided 5-4 court and sometimes sides with the liberal justices, apparently in an effort to deflate that perception.

We don’t have a very solid history to draw on in terms of which way Roberts will vote on this one. When it came to upholding the President’s travel ban, he sided with the conservatives and handed Trump a victory. But when it came to the issue of the citizenship question on the census, Roberts voted with the four liberal justices. It remains unclear which of those cases is more similar to the DACA question, though, in the travel ban case, Roberts wrote that the President has, “broad discretion to suspend the entry of aliens into the United States.”

There’s a bigger question the justices should be wrestling with here, though. DACA is a program that was summoned into existence in whole cloth by a sitting president using an executive order. There was no input from or control exerted by Congress. If that was an acceptable action, then how can a later president not be empowered to terminate it by the same means? And if the president does not have such authority, then how was Barack Obama able to create it in the first place?

No matter how they parse their individual rationales in the end, I’m pretty sure we know how eight of the justices will vote on this one. It will all come down to how John Roberts is feeling that day. But if he essentially rules that the ability of presidents to exercise power by drafting executive orders is dependent on which party they belong to, we’re in for a rocky road ahead.

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