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Supreme Courtís Illegal Immigration Ruling (DACA) Applies Different Legal Standards To Different Presidents
The Federalist ^ | 06/19/2020 | Ilya Shapiro

Posted on 06/19/2020 8:12:54 AM PDT by SeekAndFind

June 18’s Supreme Court ruling on the Deferred Action for Childhood Arrivals (DACA) program is bad judging on top of bad lawyering. It has good short‐​term practical effects but makes policy reform harder in the longer term.

Recall what’s going on here: In 2012, the Department of Homeland Security (DHS) issued a memo creating DACA, which allows people who were brought here illegally as children (the so-called Dreamers) to apply for a renewable “lawful presence” status exempting them from removal, along with work authorizations and other benefits. Two years later, it created a similar program, the Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA).

In the 2016 case Texas v. United States, an evenly divided 4-4 court (after Justice Antonin Scalia’s passing) affirmed without opinion an injunction issued against DAPA for violating the Immigration and Nationality Act (INA). In June 2017, based on an opinion of Attorney General Jeff Sessions that DACA was unlawful because its defects mirrored those in DAPA, DHS announced a phase-out of DACA, which has been stuck in the courts ever since.

But Chief Justice John Roberts’s majority opinion didn’t simply adopt the lower courts’ reasoning that DACA was likely lawful and thus the administration couldn’t end it so easily. Instead, he first found that “DACA is more than a non-enforcement policy” of the kind that merits broad deference to the executive branch, but also an affirmative-benefits policy, the rescission of which must follow the niceties of the Administrative Procedure Act (APA). And since both the Fifth Circuit in the DAPA case and Sessions in his memo focused only on the illegality of granting certain benefits, DHS’s action was “arbitrary and capricious,” a no-no in administrative law.

In other words, precisely because nobody challenged executive authority to set removal priorities—going after violent criminals ahead of the Dreamers, say—the Trump administration couldn’t simply claim that all of DACA went beyond presidential power, but had to show its work as to the illegal parts. That technical reason for blocking rescission is debatable, and I think Justice Brett Kavanaugh’s dissent has the better of that argument over Chief Justice Roberts’s majority opinion. I won’t go into all the details, but it’s clear that the administration didn’t do a good job explaining its decision—not that it needed to, points out Kavanaugh—or differentiating the part of DACA that’s legal (“forbearance,” or deprioritizing deportation of certain classes of people) from the part that’s not (granting temporary status and benefits).

The problem is that because DACA is more than non‐​enforcement, more than executive or prosecutorial discretion, it goes beyond the powers presidents are given under the INA. Indeed, it goes beyond the powers presidents can be delegated by Congress, because these sorts of actions constitute making rather than enforcing the law.

In other words, the majority says that President Trump issued a new regulation without giving sufficient reasoning and otherwise following the APA. But if that’s the case, then President Obama acted even more egregiously in rewriting the law in the first place.

“DHS created DACA during the Obama administration without any statutory authority and without going through the requisite rulemaking process,” wrote Justice Clarence Thomas in dissent, joined by justices Sam Alito and Neil Gorsuch. “The majority does not even attempt to explain why a court has the authority to scrutinize an agency’s policy reasons for rescinding an unlawful program under the arbitrary and capricious microscope.”

The court could’ve avoided that glaring hole in its administrative‐​law reasoning—and any concerns about the “nondelegation doctrine”—by just deferring to the administration’s reasonable if insufficiently explained legal judgment, as Cato’s amicus brief suggested. It didn’t even need to rule on DACA’s legality, but could’ve instead found that what one president established via memo, another can rescind with another memo, for good, bad, or no reason at all.

Instead, it set a precedent that one president’s executive action can’t be rescinded by the next president unless he jumps through hoops that his predecessor didn’t have to. That’s a recipe for ever‐​expanding federal and executive power, to the detriment of our constitutional system of government. As Thomas put it, the holding “is incorrect, and it will hamstring all future agency attempts to undo actions that exceed statutory authority.”

Finally, as a matter of policy, it’s a good thing that DACA beneficiaries—themselves no strangers to jumping through administrative hoops—will now be allowed to stay here and continue their lives as productive members of society. Good for them and good for the country.

But for how long? Because today’s decision not only goes against the rule of law, it harms the prospects for fixing our broken immigration system. Just as Obama’s imposition of DACA and DAPA poisoned the well for legislative solutions, this ruling removes all pressure from Congress to act.

A decision upholding rescission would’ve forced Congress’s hand. Now we’re left with a mutually antagonistic muddle that benefits nobody but both parties’ Manichean political operatives. As is often the case with a Roberts opinion, an attempt to depoliticize an issue or remove the Supreme Court from the electoral fray only does the opposite.


Ilya Shapiro is a senior contributor to The Federalist. He is director of the Robert A. Levy Center for Constitutional Studies at the Cato Institute.


TOPICS: Constitution/Conservatism; Culture/Society; Government; News/Current Events
KEYWORDS: daca; illegals; legalstandards; scotus
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1 posted on 06/19/2020 8:12:54 AM PDT by SeekAndFind
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To: SeekAndFind

Different standards for different Presidents.
Yep, like the entire establishment top to bottom. The deep state is another cult.


2 posted on 06/19/2020 8:15:14 AM PDT by snarkytart
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To: SeekAndFind

John Roberts is not fit to be a traffic court judge.


3 posted on 06/19/2020 8:15:31 AM PDT by RatRipper ( Democrats and socialists are vile liars, thieves and murderers - enemies of good and America.)
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To: SeekAndFind

Obamacare WAS NOT CONSTITUTIONAL.
DACA is NOT CONSTITUTIONAL.

YOU DECIDE what presidents are being singled out....


4 posted on 06/19/2020 8:18:31 AM PDT by EagleUSA
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To: SeekAndFind

he subjects of DACA brought here illegally by their illegal alien parents are all ‘subject to a foreign jurisdiction’, namely, their countries of origin. Although they have access to general protection of our laws, their countries’ foreign counsels represent them outside their countries of origin.

So WTH is SCOTUS doing even looking at the case? The justices have no jurisdiction to affect DACA recipients, from a Constitutional basis. The Immigration Courts, under the Executive branch, deal with foreigners. This ruling should be blatantly ignored by President Trump.

This should be part of a Comprehensive Immigration Enforcement bill, missing since 1986 ONE TIME amnesty. The List of Comprehensive Immigration Enforcement, missing since 1986 goes like this -

1) southern barrier;
2) require eVerify to hire;
3) end all chain migration;
4) birthright per Minor v. Happersett (plural parents);
5) end work visas;
6) 10-year moratorium on all new applications for citizenship (40 years to allow workplace automation effects on downsizing population);
7) Set up an illegal aliens’ victim restitution fund.

Enactment of these provisions will motivate illegal aliens to SELF-deport, and remove colonizadors from our welfare rolls.


5 posted on 06/19/2020 8:18:34 AM PDT by RideForever (We were born to be tested)
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To: SeekAndFind; All

Patriots need to elect a new patriot Congress that will not only promise to fully support PDJT’s already excellent work for MAGA, but will also promise to impeach and remove Constitution-ignoring liberal justices from the bench.


6 posted on 06/19/2020 8:19:52 AM PDT by Amendment10
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To: SeekAndFind

DACA was never legal.

Obama had no authority to do it, said so himself numerous times.

The Supreme Court has upheld that which was never legal.

Say goodbye to the rule of law.


7 posted on 06/19/2020 8:19:59 AM PDT by Lurkinanloomin (Natural Born Citizens Are Born Here of Citizen Parents|Know Islam, No Peace-No Islam, Know Peace)
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To: Lurkinanloomin; All

Thread
See new Tweets
Conversation

Donald J. Trump
@realDonaldTrump
·
2h
The Supreme Court asked us to resubmit on DACA, nothing was lost or won. They “punted”, much like in a football game (where hopefully they would stand for our great American Flag). We will be submitting enhanced papers shortly in order to properly fulfil the Supreme Court’s.....

Donald J. Trump
@realDonaldTrump
...ruling & request of yesterday. I have wanted to take care of DACA recipients better than the Do Nothing Democrats, but for two years they refused to negotiate - They have abandoned DACA. Based on the decision the Dems can’t make DACA citizens. They gained nothing!
@DHSgov


8 posted on 06/19/2020 8:25:01 AM PDT by Kenny
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To: Kenny

Doesn’t make me happy that Trump wants to protect illegal aliens from our laws, too.


9 posted on 06/19/2020 8:30:27 AM PDT by Lurkinanloomin (Natural Born Citizens Are Born Here of Citizen Parents|Know Islam, No Peace-No Islam, Know Peace)
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To: SeekAndFind

So after all is said and done, how does the President proceed? It seems at every turn someone, somewhere, does whatever they can to prevent him from doing what is right.


10 posted on 06/19/2020 8:31:17 AM PDT by ducttape45 ("Righteousness exalteth a nation; but sin is a reproach to any people." Proverbs 14:34)
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To: Lurkinanloomin

The Supreme Court didn’t uphold anything.


11 posted on 06/19/2020 8:31:52 AM PDT by SmokingJoe
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To: SmokingJoe

The illegal program named DACA was upheld and prevented from being removed.


12 posted on 06/19/2020 8:35:01 AM PDT by Lurkinanloomin (Natural Born Citizens Are Born Here of Citizen Parents|Know Islam, No Peace-No Islam, Know Peace)
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To: SeekAndFind
Finally, as a matter of policy, it’s a good thing that DACA beneficiaries—themselves no strangers to jumping through administrative hoops—will now be allowed to stay here and continue their lives as productive members of society. Good for them and good for the country.

This is an opinion, and one that argues that breaking the law by illegal entry and abetting said illegal acts by unconstitutionally ignoring enforcement of that law together make it right.

Two wrongs cannot make a right, no matter how much the author likes the outcome.

13 posted on 06/19/2020 8:36:59 AM PDT by MortMan (Shouldn't "palindrome" read the same forward and backward?)
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To: ducttape45

This means the USSC will uphold Obama’s other illegal Executive Order, allowing H4EAD Indian scum to work in the US. Thars another 115k jobs per year stolen from Americans.


14 posted on 06/19/2020 8:38:25 AM PDT by Starcitizen (Communist China needs to be treated like the pariah country it is. Send it back to 1971)
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To: SeekAndFind

Not really. Obama created a new rule by EO.

Trump tried to *change* that rule, EO.

To change requires compliance with Administrative Procedure Act. There are mandatory steps to follow. Trump’s lawyers failed him again (e.g. Muslim ban, build the wall, all the litigation they blow or take a dive on - due to many of them are Deep State and sabateurs themselves).

Trump can start the APA compliance all over and do it right and the courts would not stop or overturn it.

This was a raw political decision by the court 5-4, except CJ Roberts who played it straight on the law, and he is catching too much hell over it.


15 posted on 06/19/2020 8:40:03 AM PDT by shalom aleichem (Get movin' Durham!)
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To: SeekAndFind

Roberts enabled obamacare. He could have helped Trump with DACA and decided not to. No politics. Right.


16 posted on 06/19/2020 8:40:11 AM PDT by sasquatch
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To: Lurkinanloomin

Nope.
What the ruling said is: Go and redo your homework (APA) and resubmit. It was a punt.


17 posted on 06/19/2020 8:42:42 AM PDT by SmokingJoe
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To: shalom aleichem
played it straight on the law, and he is catching too much hell over it.

So why didn't Roberts play it straight with Obama Care???
18 posted on 06/19/2020 8:42:50 AM PDT by sasquatch
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To: SeekAndFind

Based on some other stories I have seen, I am beginning to wonder about Roberts.


19 posted on 06/19/2020 8:44:11 AM PDT by jimbug
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To: shalom aleichem
To change requires compliance with Administrative Procedure Act.

Except Obama did not follow the APA in the first place, as Justice Thomas pointed out. But it's what it is I guess.

20 posted on 06/19/2020 8:46:17 AM PDT by SmokingJoe
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