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ICYMI: “Can the Supreme Court Save Itself?”

 

“We’re about to find out.”

In a poignant opinion piece for the New York Times, Linda Greenhouse lays out how in trying to dismantle DACA, the Trump administration circumvented key principles of administrative law. Greenhouse argues that, under the ordinary circumstances of adhering to said laws, the administration should have to provide a “more substantial justification” as to “explain its policy choice, including why the need to end the program outweighs the fact that some 700,000 DACA recipients have built their lives around their ability to remain in the United States.” But these are not ordinary circumstances, says Greenhouse — a sentiment echoed by immigration lawyer David Leopold; the Supreme Court has built a partisan trap, out of which it can’t untangle itself, which prevents the Court from seeing straight, and leaves DACA in a perilous limbo.

The Greenhouse piece is excerpted below and can be read in full here

The case involving the Deferred Action for Childhood Arrivals program, or DACA, is a prime example. When the case, Department of Homeland Security v. Regents of the University of California, was argued last week, no one disputed that President Trump can rescind the deportation deferral that President Barack Obama granted to hundreds of thousands of undocumented young people who were brought to this country as children and who have made their lives here. The case is not about DACA’s legality or presidential discretion. It’s about rules: whether in rescinding DACA, the president adhered to the core principles of administrative law. Judges in four federal judicial districts found that he did not.

“Administrative law” may sound like a boring subject, but it isn’t. It’s both fascinating and, in the 73-year history of the Administrative Procedure Act, more important than ever for providing the legal structure in which encounters between citizens and their government take place. The Administrative Procedure Act doesn’t tell the government what to do. It simply requires that actions of federal agencies be supported by reasoned decision-making. When challenged, agencies have to provide explanations that are plausible and consistent rather than “arbitrary and capricious.”

… The president would almost certainly have gotten away with rescinding the DACA program if he and his lawyers had simply said, “We don’t like DACA, it’s inconsistent with our approach to immigration policy in the following ways, and we’re getting rid of it.” But the lawyers couldn’t say that because President Trump had promised “the Dreamers” at the start of his administration that they would have his continued support. So the explanation the lawyers offered was that they had to terminate the program because they had discovered that it was illegal.

… What this means is not that the Trump administration is stuck with DACA until the end of its days. Rather, if the administration wants to offer policy-based reasons for terminating DACA, it has to explain its policy choice, including why the need to end the program outweighs the fact that some 700,000 DACA recipients have built their lives around their ability to remain in the United States. Judge Bates said that when an agency is terminating an existing policy, the Administrative Procedure Act requires a “more substantial justification” than usual if the “prior policy has engendered serious reliance interests.”

So that’s how the ordinary rules would work in the DACA case. It’s not particularly complicated, but the conservative justices appeared to be having a hard time with it when the case was argued last week. “It would take another six years,” Justice Neil Gorsuch, citing the administration’s argument, said in frustration to the DACA recipients’ lawyer, Theodore Olson. It surely wouldn’t take that long, but in any event, all the justices have to do to start the clock running is to affirm the lower court opinions.