Motus Mentis

Another day, another calamity at the Supreme Court: John Roberts sides with the liberal wing to block the recission of DACA, remanding it to the Department of Homeland Security for another try.

The argument in the majority opinion — and along with the dissenting Justices, I think it’s so thin as to be quite transparent — is that precedent allows the Court to ignore a clarifying 2018 memorandum, by then-Homeland Secretary Kirtsjen Nielsen explaining the rationale for the recission. According to Justice Roberts, the explanation is “post-hoc”, and so can’t be considered by the Court, which may only look at the original explanatory memorandum presented by Acting Secretary of Homeland Security Elaine C. Duke in 2017. But, as Brett Kavanaugh explains in his dissent, there is no precedent for such a decision, in which the follow-up clarification of an agency’s position is provided by the agency itself.

Justice Clarence Thomas wrote a dissenting opinion, joined by Justices Gorsuch and Alito. In it he begins by explaining the fact that should have made the appeal to SCOTUS dead on arrival: that DACA was illegal to begin with; that it was created without any grant of authority from Congress to override existing law.

DHS created DACA during the Obama administration without any statutory authorization and without going through the requisite rulemaking process. As a result, the program was unlawful from its inception. 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 decision to countermand an unlawful agency action is clearly reasonable. So long as the agency’s determination of illegality is sound, our review should be at an end.

Today’s decision must be recognized for what it is: an effort to avoid a politically controversial but legally correct decision. The Court could have made clear that the solution respondents seek must come from the Legislative Branch. Instead, the majority has decided to prolong DHS’ initial overreach by providing a stopgap measure of its own. In doing so, it has given the green light for future political battles to be fought in this Court rather than where they rightfully belong—the political branches.
Such timidity forsakes the Court’s duty to apply the law according to neutral principles, and the ripple effects of the majority’s error will be felt throughout our system of self-government. Perhaps even more unfortunately, the majority’s holding creates perverse incentives, particularly for outgoing administrations. Under the auspices of today’s decision, administrations can bind their successors by unlawfully adopting significant legal changes through Executive Branch agency memoranda. Even if the agency lacked authority to effectuate the changes, the changes cannot be undone by the same agency in a successor administration unless the successor provides sufficient policy justifications to the satisfaction of this Court. In other words, the majority erroneously holds that the agency is not only permitted, but required, to continue administering unlawful programs that it inherited from a previous administration.

Justice Thomas argued further that even if DACA’s illegality were not sufficient to short-circuit the case, there were other grounds to reject the majority’s argument. I will not present this second section of his dissent here, but it is also clear and compelling.

The Court’s has not closed the door on the recission of DACA; by remanding it to the Executive Branch to try again it has, however, introduced a substantial delay, and it’s almost certain that nothing more will happen until after the election (upon which, God knows, the fate of what remains of the traditional America nation depends; if we lose, a lot more than the hope of rational immigration policy will go into the fire). The effect of this protracted lawfare campaign against the recission of DACA is described in a separate dissenting opinion by Justice Alito:

Early in the term of the current President, his administration took the controversial step of attempting to rescind the Deferred Action for Childhood Arrivals (DACA) program. Shortly thereafter, one of the nearly 700 federal district court judges blocked this rescission, and since then, this issue has been mired in litigation. In November 2018, the Solicitor General filed petitions for certiorari, and today, the Court still does not resolve the question of DACA’s rescission. Instead, it tells the Department of Homeland Security to go back and try again. What this means is that the Federal Judiciary, without holding that DACA cannot be rescinded, has prevented that from occurring during an entire Presidential term. Our constitutional system is not supposed to work that way.

No, it certainly isn’t. Read the whole thing here.