Opinion / Politics

Roberts Decision – Punts DACA to November 2020

robertsOn June 18, the Supreme Court – in a 5-4 decision – decided to become political, while stating that their intent is not to be political.  The split decision, written by Justice Roberts, blocked President Trump’s decision to reverse President Obama’s earlier decision not to enforce US immigration laws.  In effect, the Court let the Deferred Action for Child Arrivals (DACA) program stand.   But this is not the end of the debate.  It just punts everything to November 2020.

Here is what happened and why this discussion is not over.  In short, the Supreme Court had an easy decision to make.  Obama had scuttled US law with an executive order allowing children brought to the US by illegal alien parents to stay.  Trump reversed that decision, and the Court should have said – yes, US immigration laws are enforceable, Trump is right, DACA is done.

The reason this was such an easy call is that Obama had stopped enforcing the law by executive order.  Moreover, Obama had allowed parents of illegal DACA children to stay, under a program he called DAPA.  They could not be deported and could work and get all federal benefits.

In June 2016, the Supreme Court spilt 4-4 – without Justice Scalia’s vote – reviewing a lower court ruling that found Obama’s DAPA program illegal.  In effect, the Supreme Court killed DAPA, and required US immigration laws be enforced.  That was before Trump got elected.

When Trump became president, he simply completed the process, reversing Obama’s executive order that allowed DACA – even as he offered to work with Congress on a law to fix the problem.  When agreement could not be found, he ended DACA and sought to enforce US law.

Trump’s reversal of DACA and enforcement of US law got challenged, of course.  It ended up at the Supreme Court.  The Roberts ruling – rather transparently – punted the whole question back to the Trump Administration, or Congress, or – in truth – to the 2020 election.

Here is how.  Too cute by half, Roberts called Trump’s Department of Homeland Security “arbitrary and capricious” under the Administrative Procedures Act (APA), since the Department’s reasoning was not the way Roberts would have done it.  It did not hit all the wickets, the way Roberts saw it, before reversing an executive order that hit no wickets.

Interestingly, Roberts’ opinion does backflips to conclude two Secretaries of Homeland Security and the Department of Justice got it all wrong, did not reason as he would have to why the law should be enforced.  Accordingly, Roberts said Trump’s decision was “arbitrary and capricious.”

In short, Trump did not sufficiently explain how “equities” of all parties – American citizens and those who broke the law with their children – got balanced.  Instead, Roberts came down on the side of the 9th Circuit, finding Trump had not complied with the APA when reversing Obama’s decision not to enforce US law.

If this sounds like a legal farce, sadly it looks like one.  The liberal majority, again led by Roberts, said “the rescission was inadequately explained,” and so whole idea of ending DACA must be sent back – or remanded – to the Administration to rethink.  In the meantime, the “700,000 DACA recipients may … work” and remain “eligible” for federal benefits.

Is this absurd?  On the law, as carefully and cogently explained in a dissent written by Justice Kavanaugh, yes.  Will it stand?  That is the big question.  The answer would initially depend on how well Trump’s team “reasons” to enforcing US immigration law, and reversing Obama’s non-enforcement of the law, non-deportations, and giveaway of benefits.

But reality is also at work – and Roberts, together with the liberal wing of the Court, knows it.  In effect, Trump’s senior leadership – which tried to create a path to citizenship with Congress for the DACA group – will again explain how they weighed equites, arriving at their decision.  They will re-run all the APA wickets, and they will end the program.

That will be challenged in court. Depending on what happens, a conflict between circuits may again put the case before the Supreme Court – but NOT until after November 2020, or likely after January 2021, that is, until Trump is either reelected – or a Democrat takes the White House, likely readopting the Obama-Biden “let them all in” policy.

So, you see where this Supreme Court ruling leaves us?  It leaves us forced – again – to put all chips on one square, November 2020’s presidential election.  The real decision on DACA is not going to be made by the Supreme Court – but by voters in November.  If Trump wins, DACA goes, or is resolved away by compromise. If Biden wins, DACA – and likely DAPA – roar back.


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