Supreme Court rules on DACA.

It looks like it’s just a kick down the road. But for now, the dreamers are safe.

Translate from Legal to English, please?

Roberts told DHS to try it again because their initial shot was so substantially flawed in its reasoning that a 4 year old could have written it. His main problem was that DHS didn’t have a reason to overturn DACA, or at least one that wasn’t just racism. No amount of back-pedaling could save them. The court ruled on the DHS policy reversal as written.

Thank you.

This is adding up to be the worst week yet for Trump & Co.

Well, until the indictments rain down in Feb 2021.

I don’t understand the legal stuff- was it basically that the administration didn’t do it in the right manner? What did the SC say they did wrong?

What’s disturbing to me is that 4 justices had no problem with that at all.

And I’m betting that because of this he is going to double down on the oppressive bullshit. For instance: Trump appointee ousts multiple officials within US media agency

As for the vetting of Pack, it seems that he was just sleazy enough to pass muster:

The District Court in NAACP took a different approach. It deferred ruling on the equal protection challenge but granted partial summary judgment to the plaintiffs on their
APA claim, finding that the rescission was inadequately explained.
The court then stayed its order for 90 days to permit DHS to reissue a memorandum rescinding DACA, this time with a fuller explanation of the conclusion that DACA was unlawful. Two months later, Duke’s successor, Secretary Kirstjen M. Nielsen, responded to the court’s order. She declined to disturb or replace Duke’s rescission decision and
instead explained why she thought her predecessor’s decision was sound. In addition to reiterating the illegality conclusion, she offered several new justifications for the rescission. The Government moved for the District Court to reconsider in light of this additional explanation, but the court concluded that the new reasoning failed to elaborate meaningfully on the illegality rationale.

They got caught being racist. From the way Roberts worded things, I think he would have had no problem ruling the other way if the Trump Administration hadn’t been so stupid.

Oh, I’m already picking the Celebratory Tin from Garretts.

Recent series of TrumpTweets on this decision:

My problem is with the majority. Obama enacted DACA as an executive order with no comment period or Congressional support.

Trump comes into office and withdrawals the executive order.

Should be an open and shut case without debate. The reasoning given was that it was an illegal enaction given that the President has the duty to “take care that the laws be faithfully executed” and such a policy completely eviscerates that by saying that these certain laws will not be faithfully executed.

A “just because I want to” should be enough for any new President to repeal a previous executive order. Why does one president’s executive order have staying power and enforcement against a subsequent president?

But the left knows how to troll Roberts. Just keep putting out articles about how Roberts simply MUST rule a certain way or else the Supreme Court will lose legitimacy and it will be his fault. Then Roberts will fold like a cheap suit. The man is a disgrace.

Interestingly, SCOTUS rejected the idea that DACA is merely a matter of prosecutorial discretion. Indeed, the affirmative immigration benefits (ability to apply for work authorization, primarily) provided by DACA are precisely what made its recession reviewable in court.

That puts DACA on shaky ground. Even a Biden administration could not justify the program’s continued existence solely based upon prosecutorial discretion. And since the arguments against DACA closely parallel those against DAPA (which a federal court issued an injunction against) it would just take a few red state Attorneys general to launch another challenge that could bring DACA down.

Actually, the Rovberts opinion didn’t really get into the racism issue. The only justice to deal with this was Sonia Sotomayor, in her concurrence. She argues that the court should have left the door open to evaluating the equal protection issue, pointing out that Trump’s anti-Mexican rhetoric provided at least enough evidence to let the respondents proceed with their claim that DACA had been rescinded for unconstitutional reasons.

[quote=“UltraVires, post:12, topic:855905”]
A “just because I want to” should be enough for any new President to repeal a previous executive order. Why does one president’s executive order have staying power and enforcement against a subsequent president?
[/quote]Well, leaving aside all of the explanations offered by Roberts’ opinion regarding the reviewability of the case, and the specifics of the Administrative Procedures Act, there’s an important concept in this sort of case called “reliance.” The terms was used 22 times in the majority opinion.

It basically means that people rely on government rules and regulations when they make their decisions. So, hundreds of thousands of DACA recipients relied on DACA when they made decisions like applying for the program, going to college, accepting work, etc., etc., etc. Also, other individuals and institutions, from families and friends, to employers and universities, made decisions about a variety of issues based on the assumption that DACA was a valid government program.

This doesn’t mean that the court can’t overturn DACA, but it does mean, as Roberts points out on a number of occasions, that the government should have taken those reliance interests into account when making its decision to rescind DACA.

But DACA did not, by itself, provide those “affirmative immigration benefits” like work authorization. In fact, those benefits already existed for any immigrant under “deferred action” status. Some of the deferred action benefits were created under the Reagan administration; others under Clinton. All DACA did was add a whole bunch of people to “deferred action” status. There’s disagreement among legal scholars, though, and also now some implicit disagreement among the court, about whether those deferred action measures are legal.

I think that, despite this ruling, you’re right that DACA is on shaky ground. As a general matter of administrative law, if one presidential administration can do something, then another presidential administration can undo it. But that still means that you have to do it properly.

However, as the dissent noted, the government has consistently argued that DACA can be repealed at any time and that nobody should rely on it.

Further, it turns the concept of an executive order on its head. Almost every order grants some benefit to a person who can then claim reliance on it. But why should there be any reliance interest on a order that by definition may not survive a new administration? That shouldn’t act as a bar to a future administration to have a lesser power to repeal it than the previous administration had to announce it.

Everyone knows why Trump rescinded it. It’s a political issue that a Republican administration doesn’t think is proper. To require certain magic words on paper is a ridiculous and overly formalistic judicially invented requirement. Just like how Obama thought it was a good thing, Trump (or Cruz, or Jeb Bush, or whoever) can think it is a bad thing. Then if Biden gets elected he can enact it again if he thinks it is a good thing. That’s the nature of executive orders.

If Congress repeals a law with reliance interests, should it be required to make a sufficient statement that satisfies a court why it did so?

No it shouldn’t. And, as I suggested, nor would reliance interests have prevented this administration from repealing DACA if they had gone about it the right way.

In fact, if Trump and his administration had been honest enough to say, right up front, “We’re rescinding DACA because we think it’s a bad policy and we don’t want to give these immigrants who were brought here as children any more rights than any other undocumented immigrant,” they probably would have been fine. This all began largely because they didn’t have the balls to do this, because they know that DACA is an incredibly popular policy, even among a considerable number of Republicans. He tried to have it both ways, signalling his hard-ass anti-immigrant attitude to his base, while pretending to everyone else that he was only cancelling DACA because it was illegal.

And again, like with the travel ban cases, the administration had more than one chance to get this right, and they still fucked it up. The original Duke memo basically just gave the “it’s illegal” justification for rescinding DACA. Then, when it became clear that maybe DACA wasn’t illegal after all, they trotted out the new Homeland Security Secretary, Kirstjen Nielsen, to write another memo that built on the Duke memo. But because this was basically just a slight elaboration and recapitulation of the first memo, the majority said that it could not be considered. If Kirstjen Nielsen had written a totally new memo, pretending that the first one didn’t exist and outlining a more robust set of reasons for rescission, it likely would have worked.

I agree that, in some senses, this whole case is a mess. It’s still not actually clear, from the majority opinion, whether they think DACA is illegal, although the fact that they allowed it to stand is instructive. Whatever one thinks of the liberals and John Roberts, it seems rather unlikely that they would allow a measure to continue that they explicitly believed to be unlawful. I also tend to agree that Roberts is doing some dancing here. After all, he also voted in another case that DAPA was illegal.

By the way, for anyone who is interested in understanding important Supreme Court decisions, I highly recommend the We The People podcast, hosted by Jeffrey Rosen at the National Constitution Center. It’s avowedly non-partisan, and typically involves two guests who take differing positions on important legal and constitutional issues.

This week’s episode deals with the DACA decision. One of the guests is Leah Littman, a law professor and constitutional scholar who was on the team of lawyers arguing for the DACA recipients in this case. The other is Jonathan Adler, a law professor who sometimes blogs at the libertarian-leaning Volokh Conspiracy. They do a really good job of breaking down all the issues discussed above.

Littman obviously supports the decision, although she wishes that more justices had been willing to consider the equal protection argument. Adler believes that DACA itself was legal, but also argues (a bit like UltraVires) that the Trump administration should have been able to repeal it without any interference from the courts.

My 2005 take on John Roberts has aged well:

We should thank our lucky stars for Roberts
He is by far the least objectionable nominee we would ever hope to get from this right wing crowd.

SCOTUS disagreed.

SCOTUS writing in DHS v Regents:
But we need not test this chain of reasoning because DACA is not simply a non-enforcement policy. For starters, the DACA Memorandum did not merely “refus[e] to institute proceedings” against a particular entity or even a particular class.

DHS’s decision to “grant deferred action,” Brief for Petitioners 45—is an “affirmative act of approval,” the very opposite of a “refus[al] to act,” Chaney, 470 U. S., at 831–832. In short, the DACA Memorandum does not announce a passive non-enforcement policy; it created a program for conferring affirmative immigration relief.

The benefits attendant to deferred action provide further confirmation that DACA is more than simply a non-enforcement policy. As described above, by virtue of receiving deferred action, the 700,000 DACA recipients may request work authorization and are eligible for Social Security and Medicare.

While certain benefits have long existed for persons in a deferred action status, DACA created benefits for some 700,000 persons. In doing so it provided the courts with grounds for judicial review. If it had not done so then SCOTUS indicated the rescission might have been a decision beyond judicial review as the Trump administration argued.

Nothing that you have posted contradicted what I said. In fact, your quote pretty much repeats the argument that I was making.

As the Court says, DACA is “not simply a non-enforcement policy.” It grants an affirmative act of approval for something called “deferred action” status. But nowhere does DACA itself create “affirmative immigration benefits” such as work authorization. It makes recipients eligible for those benefits, but did not create them.

Before DACA was ever enacted, there were some immigrants in the United States who had already, on a case-by-case basis, been granted “deferred action” status. And immigrants with “deferred action” status were able to take advantage of certain “affirmative immigration benefits” that had been created by the Reagan and Clinton administrations.

What DACA did was affirmatively grant “deferred action” status to a whole bunch more people - hundreds of thousands, in fact. A simple non-enforcement policy would not have granted “deferred action” status. A simple non-enforcement policy would just have said, “Hey, ICE officers, don’t institute removal proceedings against immigrants who came here unlawfully as children.” The “affirmative act of approval” here is to “grant deferred action.” Once “deferred action” was granted, the already-existing “affirmative immigration benefits” kicked in; DACA did not create them.

Basically, before DACA there was a smaller number of immigrants with deferred action status, who were eligible for things like work authorization. DACA increased the number of such people.

This is explained by Leah Littman and Jonathan Adler in the podcast I linked a few posts up.

This is the nub of the problem. DACA didn’t create those benefits; it made more people eligible for them.