21 Jun The Supremes and DACA Dreamin’*
The Supremes and DACA Dreamin’
Headlines trumpeted a defeat for the Trump Administration on Thursday after the Supreme Court ruled that it cannot immediately end the Obama Administration’s DACA program preventing the deportation of 700,000 so-called Dreamers. The President promptly tweeted an angry response: “These horrible & politically charged decisions coming out of the Supreme Court are shotgun blasts into the face of people that are proud to call themselves Republicans or Conservatives.”
Was it really a defeat? Was it really politically charged? Did the Supreme Court’s Liberal Four somehow put a shotgun to the head of the Conservative Five and, in so doing, deal a body blow to Republicanism and Conservatism? Does this decision consequently mark a change in the Supreme Court’s conservative direction?
Not at all. Actually, the opposite.
Supreme Court Justices live in the legal world, not in some politically-motivated milieu (as Justice Alito stated in his dissenting opinion, “DACA presents a delicate political issue, but that is not our business”). The legal analysis adopted by each of the Supreme Court Justices in the DACA case, Department of Homeland Security v. Regents of University of California – as well as the conclusions the Court reached –, were classically conservative. There was no liberal legal flutter in any of the 74 pages of opinions. The majority simply based its decision on judicial restraint – the centerpiece of legal conservatism – and the dissenters would have opted for a straightforward application of judicial efficiency – an indispensable component of legal conservatism. The definition of conservatism, after all, is based on the approach used and not on the outcome.
The swing vote in Department of Homeland Security was that of Chief Justice John Roberts, a strong and consistent pen – and voice – on the right. Chief Justice Roberts is a conservative’s conservative, a proponent of strict constructionism, legal minimalism and judicial restraint. His deciding vote in striking down the Trump Administration’s attempt to rescind DACA therefore came as a surprise. It shouldn’t have.
Strict constructionism means applying the law as written, without consideration of how the authors might have rethought its application in the light of societal evolution or unusual factual situations. “Difficult cases make bad law” is a legal adage that Chief Justice Roberts lives by. He therefore is not in favor of reading innuendo into Supreme Court decisions – the law says what it says, nothing more. Courts are to rule minimally and narrowly. They are to show restraint where liberals would favor applying the Constitution and Congressional laws broadly to effectuate the changing goals of society.
In Department of Homeland Security, Chief Justice Roberts’ majority opinion was joined by his four liberal colleagues – and by none of the Court’s four conservative Justices –, and it was that combination together with the outcome that led President Trump to characterize the decision as anti-conservative. The reality is not that Chief Justice Roberts sided with the Liberal Four in reaching a philosophically liberal decision. It’s that the Liberal Four were persuaded by Chief Justice Roberts to join him and side with his brand of conservatism … which has interesting implications for future decisions. The result of the majority’s narrow, judicially-restrained decision is simply that the demise of DACA has been deferred. It has been handed back to Congress and the President … where it should be, another decidedly conservative result. The Chief Justice persuaded his four liberal colleagues to reach the narrowest possible decision. The dissenters held to a different brand of conservatism, arguing that the majority’s decision was silly because it unnecessarily delayed the inevitable demise of DACA, a demise that was very much within the power of the Trump Administration – as all nine Justices acknowledged in their opinions. DACA, the Justices agreed, had itself been an invalid, unConstitutional action by the Executive Branch – the Obama Administration – and, as such, was invalid from its very beginning. The dissenters found that the initial invalidly of DACA, rather than the improperly-executed attempt by the Trump Administration to terminate it, was outcome-determinative. To them, the majority’s decision would result in a waste of judicial time and resources and allow the case once again to wind its way through the courts.
It’s important to emphasize that each of the Justice’s opinions – by the majority, the dissenters, and those who concurred –was legally correct. Each was properly reasoned without political or legal slant, each Justice having sound authority and reasoning for his or her opinion. The nine Justices simply disagreed on the weight to be accorded to the different analyses. If you’ve seen the movie Being John Malkovich, you can understand why looking at the world through others’ eyes – here the eyes of the Supreme Court Justices in Department of Homeland Security – might provide a handy insight into their future thinking and actions. Legal scholars undoubtedly will hash and rehash the decision and its various legal niceties. The media undoubtedly will continue blowing on its many trumpets. But what counts is what Department of Homeland Security portends for future Supreme Court decisions.
The DACA saga began in 2012 when the Obama Administration’s Department of Homeland Security (DHS) unilaterally instituted the Deferred Action for Childhood Arrivals program – DACA. DACA enabled eligible young immigrants who had been illegally brought into America by their parents to obtain ongoing deferrals from enforcement action, including from deportation. Simply put, the Executive Branch of the U.S. government decided not to enforce America’s immigration laws against DACA recipients. Its reason for doing so was that Congress had been unable to reach consensus on how to treat DACA recipients.
All nine Justices in Department of Homeland Security agreed that the adoption of DACA had exceeded the authority of the Executive Branch – President Obama and his departments, including the DHS – because Congress had not passed the necessary enabling legislation. All nine Justices also agreed that, in adopting DACA, the Obama Administration had not followed the required procedures of the Administrative Procedures Act (APA). The Obama Administration had been beyond sloppy – it had ignored the restraints on Executive Power by not following the Constitution or the procedures required by Congress. It had acted unlawfully. On that basis, the four Dissenting Justices concluded that President Trump’s DHS had inherited a DACA program that was an unlawful exercise of Executive Power and that an action that was unlawful from its inception could be rescinded for that reason alone … and that, they said, should have been the end of the story: “[T]he Trump administration rescinded DACA the same way that the Obama administration created it: unilaterally, and through a mere memorandum.”
The analysis adopted by the Dissenting Four would mean that any action by the Executive Branch of government that isn’t Constitutionally authorized or explicitly delegated by Congress through legislative action is unlawful and, accordingly, invalid from inception. Their conclusion would mean that many or most Executive Orders and Executive Directives would require Congressional approval or, at the least, the careful compliance with procedural technicalities in order to become valid. That’s not consistent with the level of power believed by some Presidents – most recently Presidents Obama and Trump – to be vested in the office by Article 2 of the Constitution. For example, President Trump has said that “When somebody’s the president of the United States, the authority is total.” Among other things, he’s asserted that he has the power to require States that have stay-at-home orders in place to reopen, that he can prevent immigration from various foreign jurisdictions, that he can withhold funds allocated by Congress to “sanctuary jurisdictions,” that he can take away citizenship from children born in the U.S. to illegal immigrant parents (so-called birthright citizenship) …, and more.
The dissenters in Department of Homeland Security, as well as the Chief Justice and the Liberal Four, apparently believe that Executive Power is far more limited.
Although Chief Justice Roberts agreed that DACA had been an unlawful exercise of Executive Power by the Obama Administration, that was not the end of the story for him or the Liberal Four. By applying the conservative approach of judicial restraint, the Roberts Court reached the narrowest possible decision by relying on a legal technicality: The Trump Administration’s DHS had failed to comply with the ACA and, as a consequence, its actions in rescinding DACA had been arbitrary and capricious and were accordingly invalid. The Court majority accordingly remanded the case to allow the DHS to fix its mistakes. Chief Justice Roberts confirmed that it was not that the Trump DHS didn’t have the power to reverse DACA. It did and it does. It was that government agencies and the Executive Branch must comply with applicable law, the very basis of Constitutional government, and the Trump DHS had not done so.
The Supreme Court’s decision therefore does not reverse a Trump Administration policy – DACA can be rescinded whenever the DHS takes action under the ACA. It is, however, a statement about the limits on Executive Power … as well as a comment on the Obama and Trump Administrations’ incompetency sloppiness all-around failure to comply with the Constitution and applicable law. Tellingly, it also was a display of deft management by the Chief Justice, something to note for the future.
Finally (from a good friend)
*┬® Copyright 2020 by William Natbony. All rights reserved.