Posted on 06/18/2020 9:19:59 AM PDT by zeestephen
Define “go rage”.
Department of Homeland Security et al v Regents of the University of California, et al, S Ct 18-587 (18 Jun 2020)
Opinion of the Court at 9:
IIThe dispute before the Court is not whether DHS may rescind DACA. All parties agree that it may. The dispute is instead primarily about the procedure the agency followed in doing so. The APA “sets forth the procedures by which federalagencies are accountable to the public and their actions subject to review by the courts.” Franklin v. Massachusetts, 505 U. S. 788, 796 (1992). It requires agencies to engage in “reasoned decisionmaking,” Michigan v. EPA, 576 U. S. 743, 750 (2015) (internal quotation marks omitted), and directs that agency actions be “set aside” if they are “arbitrary” or “capricious,” 5 U. S. C. §706(2)(A). Under this “narrow standard of review, . . . a court is not to substitute its judgment for that of the agency,” FCC v. Fox Television Stations, Inc., 556 U. S. 502, 513 (2009) (internal quotationmarks omitted), but instead to assess only whether the decision was “based on a consideration of the relevant factors and whether there has been a clear error of judgment,” Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U. S. 402, 416 (1971). But before determining whether the rescission was arbitrary and capricious, we must first address the Government’s contentions that DHS’s decision is unreviewable under the APA and outside this Court’s jurisdiction.
Opinion of Kavanaugh J., at 2:
The question before the Court is whether the Executive Branch acted lawfully in ordering rescission of the ongoing DACA program. To begin with, all nine Members of the Court accept, as do the DACA plaintiffs themselves, that the Executive Branch possesses the legal authority to rescind DACA and to resume pre-DACA enforcement of the immigration laws enacted by Congress. Having previously adopted a policy of prosecutorial discretion and nonenforcement with respect to a particular class of offenses or individuals, the Executive Branch has the legal authority to rescind such a policy and resume enforcing the law enacted by Congress. The Executive Branch's exercise of that rescission authority is subject to constitutional constraints and may also be subject to statutory constraints. The narrow legal dispute here concerns a statutory constraint— namely, whether the Executive Branch's action to rescind DACA satisfied the general arbitrary-and-capricious standard of the Administrative Procedure Act, or APA.The APA's arbitrary-and-capricious standard requires that agency action be reasonable and reasonably explained.
At 3:
The Executive Branch explained its decision to rescind DACA in two sequential memorandums by successive Secretaries of Homeland Security: the 2017 Duke Memorandum and the 2018 Nielsen Memorandum. The Duke Memorandum focused on DACA's perceived legal flaws. The Court today finds the Duke Memorandum insufficient under the APA's arbitrary-and-capricious standard.But regardless of whether the Court is correct about the Duke Memorandum, the Nielsen Memorandum more fully explained the Department's legal reasons for rescinding DACA, and clarified that even if DACA were lawful, the Department would still rescind DACA for a variety of policy reasons. The Nielsen Memorandum also expressly addressed the reliance interests of DACA recipients. The question under the APA's deferential arbitrary-and-capricious standard is not whether we agree with the Department's decision to rescind DACA. The question is whether the Nielsen Memorandum reasonably explained the decision to rescind DACA. Under ordinary application of the arbitrary-and-capricious standard, the Nielsen Memorandum—with its alternative and independent rationales and its discussion of reliance—would pass muster as an explanation for the Executive Branch's action.
The Nielsen Memorandum was issued nine months after the Duke Memorandum. Under the Administrative Procedure Act, the Nielsen Memorandum is itself a “rule” setting forth “an agency statement of general . . . applicability and future effect designed to implement . . . policy.” 5 U. S. C. §551(4). Because it is a rule, the Nielsen Memorandum constitutes “agency action.” §551(13). As the Secretary of Homeland Security, Secretary Nielsen had the authority to decide whether to stick with Secretary Duke's decision to rescind DACA, or to make a different decision. Like Secretary Duke, Secretary Nielsen chose to rescind DACA, and she provided additional explanation. Her memorandum was akin to common forms of agency action that follow earlier agency action on the same subject—for example, a supplemental or new agency statement of policy, or an agency order with respect to a motion for rehearing or reconsideration. Courts often consider an agency's additional explanations of policy or additional explanations made, for example, on agency rehearing or reconsideration, or on remand from a court, even if the agency's bottom-line decision itself does not change.
Yet the Court today jettisons the Nielsen Memorandum by classifying it as a post hoc justification for rescinding DACA. Ante, at 14-16.
At 6:
Because the Court excludes the Nielsen Memorandum, the Court sends the case back to the Department of Homeland Security for further explanation. Although I disagree with the Court's decision to remand, the only practical consequence of the Court's decision to remand appears to be some delay. The Court's decision seems to allow the Department on remand to relabel and reiterate the substance of the Nielsen Memorandum, perhaps with some elaboration as suggested in the Court's opinion. Ante, at 23-26.*
Seen the movie Falling Down?
Wow!
I’ve been told there were a lot of major fights with Irish and Italians on one side and blacks on the other. I don’t know how true it is.
The Italians still were a presence in North Newark and Ironbound while many of the Irish had left; I noticed about 20 years ago the last Italian enclaves were disappearing as well. I don’t know that the Irish were in specific neighborhoods like that, or were more scattered until the exodus.
Gotcha.
The Irish had a very heavy presence in all of the towns near the outerbridge on Staten island. It may still be true I don’t know. .
We wops saturated every neighborhood :-)
I’m 52 now. One thing I do know when I was in my late teens and twenties the Irish kids here were some tough son of a guns
With very hard heads :-)
*Seen the movie Falling Down?*
_______
That’s the world you want to live in ? No thanks.
I am not sure what I am supposed to be looking for.
The best decision, and I believe the first decision in this case, came from Judge Alsup…
https://assets.documentcloud.org/documents/4345906/1-9-18-DACA-Opinion.pdf
Alsup points out that Trump's DACA Executive Order seeks to rescind a “mistake of law.”
Alsup questions whether a mistake of law can or should be addressed by an Executive Order instead of a normal lawsuit.
Then, Alsup asks Trump why Trump does not just write an Executive Order that creates a new policy?
Trump, of course, has no answer to that question.
Trump could have ended DACA on his first day in office with a two sentence Executive Order...
“According to the exact language in the Immigration and Nationality Act, the DACA kids are unlawfully present in the USA. I order the Secretary of Homeland Security to remove them.”
Under the APA, an Executive Order like that cannot even be reviewed by a federal judge.
Bottom Line - Trump will never write an Executive Order like that because he does not want to deport any DACA kids, except dangerous criminals.
Re: “This crap was created by EO and can be ended by EO.”
I agree.
Trump could have ended DACA on his first day in office with a two sentence Executive Order...
“According to the exact language in the Immigration and Nationality Act, the DACA kids are unlawfully present in the USA. I order the Secretary of Homeland Security to remove them.”
Under the APA, an Executive Order like that cannot even be reviewed by a federal judge.
Bottom Line - Trump will never write an Executive Order like that because he does not want to deport any DACA kids, except dangerous criminals.
What is generally known about Roberts is that he adopted kids from Ireland, some say going around Federal immigration law to streamline the process.
Also there is a photo available (someone will post it here in due time) showing him having dinner with a friend. One would leave it to you to interpret it when it shows up.
...AND, shortly after the 0bamacare ruling, he's caught on camera coming and going from the national bank of Cyprus, IIRC... making a deposit?
So, if there's a black file on him, it will have something other than these three things in it. Maybe something about swearing 0bama in twice, etc.
I agree - but only if you write the correct E.O.
Trump's E.O. claims that Obama’s E.O. violated the law.
I am not lawyer, but I am not sure that any President has ever written an E.O. that claims “a mistake of law.”
Instead, all the other Presidents just write a new policy.
Trump could have ended DACA on his first day in office with this two sentence Executive Order...
“According to the exact language in the Immigration and Nationality Act, the DACA kids are unlawfully present in the USA. I order the Secretary of Homeland Security to remove them.”
Under the APA, an Executive Order like that cannot even be reviewed by a federal judge.
Bottom Line - Trump will never write an Executive Order like that because he does not want to deport any DACA kids, except dangerous criminals.
The 2-for-1 H1B deal, H4-EAD was created by executive order. I’d bet these H4 holders are quite safe right now.
Not surprising how the media SPUN SCOTUS’ ruling on DACA. Was far less a bitch-slap to Trump than the media portrayed. I was fooled, initially.. should’ve known better!
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