The Supreme Court’s new Leftwing majority, led by the once allegedly conservative Chief Justice John Roberts, has issued two bizarre rulings this week, the latest being in the case of Department of Homeland Security et al. v. Regents of the University of California et al. which addressed the Trump administration’s effort to end the Obama Deferred Action for Childhood Arrivals (DACA) program.
Ronn Blitzer and Bill Mears reporting for Fox News wrote that in the 5-4 decision, with Chief Justice John Roberts joining the liberal members to author the opinion, the court said the Department of Homeland Security’s move to eliminate the program was done in an “arbitrary and capricious” manner although they did not rule on the merits of the program itself.
“We do not decide whether DACA or its rescission are sound policies. ‘The wisdom’ of those decisions ‘is none of our concern,'” Roberts wrote in his opinion. “We address only whether the agency complied with the procedural requirement that it provide a reasoned explanation for its action.”
Roberts wrote that when the administration rescinded DACA it “failed to consider the conspicuous issues of whether to retain forbearance” — referring to the non-enforcement of immigration laws to remove those with DACA protection — as well as the impact the decision would have on DACA recipients who have relied on the program.
“That dual failure raises doubts about whether the agency appreciated the scope of its discretion or exercised that discretion in a reasonable manner,” Roberts wrote, noting that the administration could have scrapped the benefits provided by DACA while keeping the non-enforcement policy, but instead eliminated all of it without even giving a reason for ceasing non-enforcement.
“The appropriate recourse is therefore to remand to DHS so that it may consider the problem anew.”
Roberts made clear that the administration does indeed have the power to rescind DACA, just not in this fashion.
“The dispute before the Court is not whether DHS may rescind DACA. All parties agree that it may,” the chief justice wrote. “The dispute is instead primarily about the procedure the agency followed in doing so.”
Justice Clarence Thomas wrote in a dissenting opinion that the decision to repeal DACA was correct, and that the majority is holding the Trump administration’s decision to a higher standard than the order that established DACA in the first place.
“These cases could—and should—have ended with a determination that his legal conclusion was correct,” Thomas wrote. “Instead, the majority today concludes that DHS was required to do far more.”
He continued: “Without grounding its position in either the APA or precedent, the majority declares that DHS was required to overlook DACA’s obvious legal deficiencies and provide additional policy reasons and justifications before restoring the rule of law. This holding is incorrect, and it will hamstring all future agency attempts to undo actions that exceed statutory authority. I would therefore reverse the judgments below and remand with instructions to dissolve the nationwide injunctions.”
Thomas accused the court’s majority of wanting to avoid making waves, even it if meant getting the law wrong.
In a line that Trump retweeted Thursday morning, Thomas said, “Today’s decision must be recognized for what it is: an effort to avoid a politically controversial but legally correct decision.”
Our friends at NumbersUSA released a statement saying they were disappointed that the majority opinion on DACA failed to consider what Justice Thomas rightly concluded: DACA was an illegal use of executive authority from the start. Clearly, an illegal policy must be reversed in order to restore the rule of law. The Court’s decision to require the administration to jump through additional procedural hoops to terminate an unlawful program that was created without jumping through those same hoops makes no sense.
We agree with the NumbersUSA statement and with Justice Thomas’ dissent, but we think there is more to this than Chief Justice Roberts and the four liberal justices demanding that the Trump administration punctiliously adhere to rules that Obama regularly ignored.
Like the continued persecution of LTG Mike Flynn, and the many other Trump administration actions that are mired in serial litigation, the goal was to push the final decision on DACA back beyond the 2020 election into a political environment that the DC establishment assumes will be more favorable to the Deep State and their Leftwing allies. Chief Justice Roberts, who was always a weak link the Supreme Court’s allegedly conservative majority, is now a key player in this strategy, which makes the reelection of President Trump and a continued Republican majority in the Senate all the more crucial to reestablishing the rule of law and the constitutional order.
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Background Photo “DACA Supporters” by Rhododendrites. CC BY-SA 4.0.
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