Skip to comments.
Supreme Court’s 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 18s 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 whats 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 Scalias 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 Robertss majority opinion didnt simply adopt the lower courts reasoning that DACA was likely lawful and thus the administration couldnt 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, DHSs action was arbitrary and capricious, a no-no in administrative law.
In other words, precisely because nobody challenged executive authority to set removal prioritiesgoing after violent criminals ahead of the Dreamers, saythe Trump administration couldnt 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 Kavanaughs dissent has the better of that argument over Chief Justice Robertss majority opinion. I wont go into all the details, but its clear that the administration didnt do a good job explaining its decisionnot that it needed to, points out Kavanaughor differentiating the part of DACA thats legal (forbearance, or deprioritizing deportation of certain classes of people) from the part thats 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 thats 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 agencys policy reasons for rescinding an unlawful program under the arbitrary and capricious microscope.
The court couldve avoided that glaring hole in its administrative‐law reasoningand any concerns about the nondelegation doctrineby just deferring to the administrations reasonable if insufficiently explained legal judgment, as Catos amicus brief suggested. It didnt even need to rule on DACAs legality, but couldve 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 presidents executive action cant be rescinded by the next president unless he jumps through hoops that his predecessor didnt have to. Thats 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, its a good thing that DACA beneficiariesthemselves no strangers to jumping through administrative hoopswill 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 todays decision not only goes against the rule of law, it harms the prospects for fixing our broken immigration system. Just as Obamas imposition of DACA and DAPA poisoned the well for legislative solutions, this ruling removes all pressure from Congress to act.
A decision upholding rescission wouldve forced Congresss hand. Now were 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
Navigation: use the links below to view more comments.
first 1-20, 21-37 next last
To: SeekAndFind
Different standards for different Presidents.
Yep, like the entire establishment top to bottom. The deep state is another cult.
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.)
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
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)
To: SeekAndFind; All
Patriots need to elect a new patriot Congress that will not only promise to fully support PDJTs already excellent work for MAGA, but will also promise to impeach and remove Constitution-ignoring liberal justices from the bench.
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)
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 Courts.....
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 cant make DACA citizens. They gained nothing!
@DHSgov
8
posted on
06/19/2020 8:25:01 AM PDT
by
Kenny
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)
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)
To: Lurkinanloomin
The Supreme Court didn’t uphold anything.
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)
To: SeekAndFind
Finally, as a matter of policy, its a good thing that DACA beneficiariesthemselves no strangers to jumping through administrative hoopswill 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?)
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)
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.
To: SeekAndFind
Roberts enabled obamacare. He could have helped Trump with DACA and decided not to. No politics. Right.
To: Lurkinanloomin
Nope.
What the ruling said is: Go and redo your homework (APA) and resubmit. It was a punt.
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???
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
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.
Navigation: use the links below to view more comments.
first 1-20, 21-37 next last
Disclaimer:
Opinions posted on Free Republic are those of the individual
posters and do not necessarily represent the opinion of Free Republic or its
management. All materials posted herein are protected by copyright law and the
exemption for fair use of copyrighted works.
FreeRepublic.com is powered by software copyright 2000-2008 John Robinson