Instant reaction to DACA Case: At Least Five Votes that Rescission Not Reviewable

Given the six-month wind-down, the policy would remain intact until after the inauguration.

|The Volokh Conspiracy |

I attended oral arguments today in the DACA case. I will have much more to say about the proceedings, as well as the process to get there, in due time. For now, I will briefly offer my prediction: there are at least five votes to hold that the DACA rescission is not reviewable. I say at least five, because Justice Kagan did not seem averse to that analysis. Indeed, a decision that the rescission is not reviewable could lead to the conclusion that DACA itself is not reviewable. SG Francisco tried to thread the needle by saying DACA was reviewable, but the decision was not. Justice Kagan seemed skeptical of this argument. The specific contours of that ruling would become important if President Trump loses re-election.

This type of ruling would be the best-case loss for the Dreamers. Given the 30-day period following remand, followed by a six-month wind-down period, DACA would remain in effect until after the inauguration. In theory, at least, a Democratic president could simply reinstitute the policy on January 20, 2021. At that point, we would be back at square one, and Texas would sue to block DACA.

The Court already ducked the merits of deferred action once in 2016. It could do so again here. And it may take another two years before the case winds its way back to the Court. At which point, the reliance interests would become even greater than they are today.

Update (11/13/19): The New York Times quotes Mark Krikorian, a prominent critic of DACA. He suggests that the effective date of the rescission could be extended further in light of the election.

Mark Krikorian, an immigration restrictionist and the executive director for the Center for Immigration Studies, said that Mr. Trump could theoretically defer making a decision during the election year. With such a move, Mr. Trump's White House could say the administration will stop processing renewals of DACA status so that it does not kick in until after the election.

"In the middle of an election year, I think the White House can genuinely say that this is not a good time to broker an immigration deal, not for anyone," Mr. Krikorian said. "That's a plausible position for them that may limit the political challenge that they face" by ending the program immediately.

I strongly doubt any changes will be made prior to January 20, 2021.

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  1. If DACA is a policy regarding enforcement priorities, like it appears to be, then DACA should be subject to rescission. There’s no good reason to end the policy, and ending it is immoral and unjust, but it can be ended just the same. And if you’re looking to make an immoral and unjust policy decision you could not ask for a better administration.

    1. There are a lot of good reasons to end the policy. The main one being preventing more “citizen” children from being born here.

      1. There’s a ton of things offensive about this comment, but the putting of “citizen” in scare quotes is perhaps the worst thing about them.

        Those children you refer to, born in the United States to Dreamers, are citizens, full stop. Not “citizens”. Citizens. The text and history of the Fourteenth Amendment, and controlling US Supreme Court caselaw, holds that. And they have much to contribute to this country.

        1. Yup, I’m sure they’ll contribute to gang crime, school behavioral problems, drug dealing, welfare use, and a myriad of other social ills endemic to Latin Americans.

          1. You’re so bad at being an American.

            1. Have you taken a look in the mirror?

            2. That is why his thinking has been a loser (over time, at least) throughout American history, in connection with successive and failed waves of intolerance and ignorance aimed at enough groups of Americans that the targets of historical intolerance substantially outnumber the vestigial bigots.

              The people who attacked Italians, Jews, blacks, the Irish, agnostics, gays, Asians, Catholics, women, eastern Europeans, Hispanics, Muslims, atheists, other Asians, other Hispanics, and other Americans were lousy people. This latest batch of bigots seems nothing special, its reliance on the charms, integrity, and insights of Donald J. Trump notwithstanding.

              The Dreamers will stay. The bigots will lose. Then, the record indicates, they will be replaced by another group of doomed bigots somewhere down the road.

              1. “The people who attacked Italians, Jews, blacks, the Irish, agnostics, gays, Asians, Catholics, women, eastern Europeans, Hispanics, Muslims, atheists, other Asians, other Hispanics, and other Americans were lousy people. ”

                1. Except when Dilan and Arthur attack Catholics. Then it’s OK.

                2. And to make up for all this, we have racial preference for… blacks and Hispanics.

                1. I don’t attack Catholics.

                  I DO attack religious TEACHINGS, which are factual claims. Is it bigotry to deny the existence of Xenu?

            3. Does being an american mean regurgitating bromides about diversity and paying fealty to an Emma Lazarus poem?

              1. Don’t think I’m talking about conservatives generally. This guy is special.

                Apart from his eugenics and wishing for a civil war, he wants to keep women from voting,

              2. Well for most of us who are Americans by dint of being born here, it means being born here. That’s it.

        2. You might want to check your facts on that…

          1. Oh, I have.

    2. Calling it immoral – I respect your opinion but I think there’s some culpability on Obama for making this decision without the legislature; to hang the future of people on so brittle and fickle a method as prosecutorial discretion makes it virtually certain that they are being set up to be let down in the future. I often chaff at selective enforcement of the law because it doesn’t create an environment where people can operate on a predictable landscape. The right method for Obama was to get a bill through Congress and if he can’t do that, lay the blame at Congress’ feet and move on. The idea that end runs around the process are validated because the ends justify the means get you where we are today. It’s a bit of an intellectual cop-out to say the decision to end DACA is immoral without examining (morally or even procedurally) the setup for failure that was its origin.

      1. OK. So say that since Obama couldn’t get it through Congress it was wrong of him to implement it as he did. Why, exactly was it certain that the beneficiaries would face a letdown? Was it a sure thing that the country would elect a xenophobic liar who’s political strategy would be to play to anti-Hispanic bigotry?

        And whatever Obama did or didn’t do, how does that affect our judgment as to the immorality of the rescission? Not at all, I’d say. Obama’s actions are history – moral sunk costs.

        1. Ignoring the invective, you ask “Why, exactly was it certain that the beneficiaries would face a letdown?”
          Because politicians have different priorities, it is certain that the discretionary judgments made by one executive will not be the same as all successive executives. That’s a given as reliable as the sun rising. The reason our system of governance specifies that the the proper law-making process goes through legislative review and surmounts hurdles of a majority vote is so they are more fully considered and not easily undone when the whims of the executive (or the House) changes.
          Next you ask, “[However the first discretionary decision was made] how does that affect our judgement [about] the recission?”. Because making the first decision was reckless – both in respect to the process of law-making but especially with respect to those whose lives it impacted. It’s basically making people a promise the Executive was in no position to make or keep. As if you promised me that the price of gold will always go up, so I can buy in at any time and always be certain of a positive return. You’re in no position to make that promise, so if I base my life on that investment certainty, I will be let down. Am I culpable for believing you? Yes. Are you culpable for making the promise? Probably, yes, if you assume that people (wrongly, in this case) endow you with more credibility than you have.

          1. You explain why it was possible, not why it was certain, that they would face a letdown.

            Yes, politicians have different priorities, but that hardly guarantees that a future President will rescind DACA. Which of the candidates in the 2016 Republican primaries would have done that if elected?

      2. Calling it immoral – I respect your opinion but I think there’s some culpability on Obama for making this decision without the legislature;…

        Well, get the history right. DACA wasn’t intended to be a permanent fix. It was intended to address an immediate issue that could be further resolved and codified through a bipartisan immigration reform bill. He was trying to create political room to maneuver and perhaps set a path for dealing with the Dreamers more permanently.

        The fact that the Republicans chose to go all-in on an obstruction strategy rather than work with Obama has more to do with why we’re here now than Obama’s initial decision.

        1. In political pejorative, that’s known as political blackmail or gambling with people’s lives. If that was the “initial decision” as you say, it’s hard to turn a blind eye to the role it played in getting us to where we are now.

          1. In political pejorative, that’s known as political blackmail or gambling with people’s lives.

            No, “political blackmail” was trying to force the issue through Congress by suspending the program, as Trump did, and then repeatedly upping his demands for concessions on legal immigration in order to sign off on a DACA fix.

            Obama wasn’t gambling with anyone’s lives. He took a group of people living with great uncertainty and no options in their ostensible “home” countries and tried to give them a degree of comfort while he tried (and failed) to negotiate a fix with Congress.

        2. The Republicans didn’t owe Obama changing the INA to suit his needs. They were under no obligation to change the law and had every right to expect the President to enforce it as written.

          What other laws do you think no longer matter because the President doesn’t like them?

          1. The Republicans didn’t owe Obama changing the INA to suit his needs.

            The Republicans have been wanting immigration reform in various guises for years, and in fact could have negotiated something as part of a bipartisan deal with Obama and congressional Democrats, had they wanted to do so.

            They chose not to because they decided that spending the Obama years campaigning against him (and later, Hillary) was going to be a more successful electoral strategy for them than, say, governing. They sought to deprive him of any “wins” and instead focused on “repealing” Obamacare, among other things. That this proved successful for them is a lot of the reason why Democrats in Congress (and McConnell, in the Senate) are behaving now as they are.

            1. “The Republicans have been wanting immigration reform in various guises for years, ”

              No, Republican officeholders have wanted it for years. The reason they never went ahead with it is because every time their voters got wind of it, they were informed that they’d be voting to retire.

        3. “It was intended to address an immediate issue that could be further resolved and codified through a bipartisan immigration reform bill. ”

          And why would Obama expect that bipartisan immigration reform bill, when he only went ahead with DACA after it had been rejected by Congress? That’s not exactly a hint you should expect legislation.

          Unless Caphon’s point about blackmail explains it.

          1. Keep in mind that “rejected by Congress” here means “4-5 votes short of overcoming Senate filibuster”.

      3. “…to hang the future of people on so brittle and fickle a method…”

        The silliness of the argument is the counterfactual is not “with[] the legislature” enacting DACA. It’s that there wouldn’t be DACA in the first place. The people in limbo would rather be in limbo than have the matter settled against them in the first place.

        Congress can repeal its own actions too. Does that mean legislation is similarly “brittle and fickle [] method”?

    3. How is ending DACA immoral? Unlawfully putting your children is that situation is what is immoral. Rewarding that behavior while punishing those who follow the law creates a moral hazard. There’s no moral obligation or responsibility to an economic “refugee,” and that is overwhelmingly the situation we’re discussing.

      1. Unlawfully putting your children is that situation is what is immoral.

        What is immoral about wanting a better life for you and your children?

        1. Because they want that “better life” at our expense. These are the least proud people on earth.

        2. What do you say about a robber who robs a bank for “his children”

      2. “Unlawfully putting your children is that situation is what is immoral.”

        Certainly it would have been more moral for the parents to remain in a third-world slum, subjecting their children to a lifetime of suffering.

        Is there anyone here willing to say they would never break the law to help their children? Y’all are so fucking weird.

    4. … an immoral and unjust policy decision …

      Would you be kind enough to articulate the moral principle(s) that make it “immoral” and the legal principle(s) that make it “unjust”?

      1. Uprooting a group of people who have lived here just about their entire conscious lives and kicking them out just to show you’re tough is immoral.

        It’s instrumentalizing other people for your own agenda, so it’s anti-Kantian. It includes high costs to them, negligible cost to us, so it’s anti-utilitarian. It shows no quality of mercy, so it’s not values-morality/Christian.

        1. Uprooting a group of people who have lived here just about their entire conscious lives and kicking them out just to show you’re tough is immoral.

          No it is not. Just because they came here didn’t give them the right to stay. And Trump offered to legalize them and the Democrats refused. If letting them stay is that important, the Democrats should have been willing to give something to get that.

          1. They were willing, but Trump kept backing out.

          2. Actually, it is immoral.

            Sarcastro’s comment covers it very well.

            To harm others is prima facie immoral unless you have a very sound justification.

            You don’t have one.

          3. “Just because they came here didn’t give them the right to stay.”

            That’s what the discussion is about. Why do you think they shouldn’t be allowed to stay? Do you have a moral argument for kicking them out, that doesn’t involve punishing them for the sins of their parents?

            “…the Democrats should have been willing to give something to get that.”

            Like E-Verify?

            1. Yes, my moral argument is that my children are more important than foreigners, and these people are genetically unintelligent and will be a forever drain on America.

              1. “Yes, my moral argument is that my children are more important than foreigners…”

                Well this “moral” argument supports the foreigners, too.

                “…and these people are genetically unintelligent…”

                Sir, you’re an abject moron. You better pray to God moral and social rules don’t start turning against the dumb.

                1. Truth hurt? I suggest you read the Bell Curve and the myriad of other literature on this subject.

                  1. The literature on the subject of your abject stupidity is in the Bell Curve? I’ve read it, I don’t remember the chapter on how fucking dumb you are.

        2. … kicking them out just to show you’re tough is immoral.

          1. You are not articulating a moral principle; you are simply begging the question.
          2. If someone enters my home without my permission, is my desire to have him removed simply showing that I’m tough?

          1. A country isn’t a home that the President lives in by himself.

            I note that both of you skipped my actual invocation of moral theories.

            1. I note that both of you skipped my actual invocation of moral theories.

              Would you be kind enough to articulate the principles upon which those moral theories are based again?

              1. You want to know the principles behind Kant and Christianity?

                1. Kant and Christianity

                  Are you suggesting that Kant and Christianity assert that I have a right to enter (and remain in) someone else’s home without permission?

                  Do Kant and Christianity assert that rewarding past lawlessness (an thereby encouraging future lawlessness) is a virtue?

                  1. As Sarcastro already said, a nation isn’t a house.

                  2. “Are you suggesting that Kant and Christianity assert that I have a right to enter (and remain in) someone else’s home without permission?”

                    We don’t need to get into Kant and Christianity. The moral question is whether you should open your house to people in need. If you think the answer is definitely no, explain why.

                    1. There’s also a question of what level of “need” is relevant. Something like 95% of the population of the Earth is poorer than the average American; Even our poorest 5 percent group are wealthier on average than 68% of the world’s population.

                      So you can’t just define being in “need” on the basis of being poor by American standards,, that’s practically everyone.

                    2. @Brett,

                      This is a coherent argument. It certainly confronts, directly, a claim that America should open its borders to everyone in the world. I don’t think it persuasively rebuts some relief for smaller, manageable classes of people who had no moral agency in the alleged illegal conduct, like very young children brought here.

                2. Kant and Christianity

                  Are you suggesting that Kant and Christianity assert that I have a right to enter (and remain in) someone else’s home without permission?

                  Do Kant and Christianity assert that rewarding past lawlessness (and thereby encouraging future lawlessness) is a virtue?

          2. “If someone enters my home without my permission…”

            If you’re talking about a child abandoned in your house by another, I would hope you’d try and help the child before simply placing him or her on the sidewalk.

            1. I would hope you’d try and help the child before simply placing him or her on the sidewalk.

              I’d call you. Apparently, your home is large enough to accommodate an infinite number of “people in need.” (And, I gather, you have already invited many in.)

              1. It is not the case that a person who is morally obligated to take care of a child is also morally obligated to allow an infinite number of people in need. That’s an especially senseless slippery slope where, as here, the issue is whether we should expend resources to kick people out of the country that the overwhelming majority of us don’t want out of the country in any event. Your argument is that if you own 1 of 10 units in an apartment complex, you apparently have a moral right to expel a person from common areas even if the other 9 want them there. So construct the moral argument for that.

                1. the overwhelming majority of us don’t want out of the country in any event

                  The question has never appeared on any of my ballots. When were “the overwhelming majority of us” ever asked to vote on that question?

                  Your argument is that if you own 1 of 10 units in an apartment complex, you apparently have a moral right to expel a person from common areas even if the other 9 want them there.

                  If “the overwhelming majority of us” don’t want “to expel a person from common areas,” our agent (Congress) should have no problem saying so.

                  1. “When were “the overwhelming majority of us” ever asked to vote on that question?”

                    Well President Obama went up for reelection months after initiating DACA. Then we had several congressional elections since then. And then we had an election for President Trump.

                    “If “the overwhelming majority of us” don’t want “to expel a person from common areas,” our agent (Congress) should have no problem saying so.”

                    They have. Republicans and Democrats have both submitted legislation that has majority approval in both houses providing paths to citizenship for people who were brought into the country as children.

        3. “kicking them out just to show you’re tough ”

          That is not part of DACA opposition at all.

          If a premise is wrong, the whole argument falls. QED.

          1. That is not part of DACA opposition at all.

            The point of the opposition by Trump is to pander to bigotry for political gain.

            It really is that simple.

          2. It absolutely is. Indeed, most people who oppose the Dreamers make a deterrence argument.

            1. The tiny portion of people who oppose Dreamers (~ 10%, only 22% of Republicans) suggests that the real reason is more sinister. “Talking tough” and “deterrence” is being fair to that group.

              1. “deterrence”

                Does rewarding past lawlessness encourage future lawlessness? Is doing the opposite “more sinister”?

                1. The “more sinister” is tribal racism. The importance of deterrence does not justify every deterrent measure. There’s a proportionality requirement, too, and it gets checked against how shitty you’re willing to be. Some people’s selective willingness to be shitty can be adequately explained by racism. (Though I think the true racists are few and far between.)

                  1. Some people’s selective willingness to be shitty can be adequately explained by racism.

                    My willingness to be “shitty” is not “selective.” If someone from my tribe butts in line ahead of someone from a different tribe, he’s the one who should be shown the back of the line.

                    If you can’t construct a rational argument, claim “racism.”

                    1. We’re not talking about line-cutters. We’re talking about children who were brought here without agency in that decision. The people willing to be shitty to kids is thankfully so small that I can wonder whether it’s just hateful spite.

                    2. We’re talking about children who were brought here without agency in that decision.

                      If my parent steals money and uses that money to purchase a saving bond in my name, would it be “hateful spite” to take that bond away from me, because I was “without agency” in the lawlessness of which I was the beneficiary?

                      I ask again: Does rewarding past lawlessness tend to encourage future lawlessness?

    5. If you’re looking for immorality, you should be looking at the DACA parents who dragged themselves and their children illegally into a foreign country, evading its democratically enacted laws, and thereby condemned their children to a life in the shadows.

      1. Have you considered that for some of those parents, “a life in the shadows” in the US is preferable to whatever life they were fleeing from? And that, in fact, many of those children are better off now than they would have been had their parents followed American immigration laws?

    6. “Prosecutorial discretion” based on age and race/national origin seems rather illegal to me, even ignoring the whole “ignore an entire class of crimes” conflicting with “faithfully execute the laws” bit.

      But on a different front, DACA implemented a work license program, employs people to maintain this program, rents space to house these workers, hires folks to work with the illegals to enroll them in the program or work with them, and so on.

      All of this is done without funding approval from Congress. That’s unconstitutional.

    7. OtisAH wrote: “There’s no good reason to end the policy”

      And your reasoning is? How about the fact that it does not — and can not — offer permanent refuge in the US? How about the fact that DACA, despite its intended purpose (one I agree with) is one of myriad actions by Congress, the President, and yes the Courts to legalize illegal immigration? How about the fact that the existence of the judicial hold on it keeps Congress from having to actually pass a permanent solution that gives Dreamers their green cards and a path toward citizenship?

      And don’t go on about how “this” administration is all at fault for the DACA debacle. The holy Democrats basically threw the Dreamers under the bus rather than have to soil themselves by fronting a stupid wall for Trump. They’re absolutely part of the problem.

      No good reason? Balderdash!

    8. Congress has been sucking their thumb for what? 4 years? Changes in imigration status of aliens is an article I power.

  2. One can never be certain about law (ironically) but how we could listen to months of narrative about how one executive can implement a discretionary policy and it not be subject to revocation by the next is beyond me – regardless of the subject of such discretion. It seems rather obvious on the face of it. Presidents do not create law – but if they do, as they do so often, it must be the most brittle and flimsy version of law. Looking forward to reading the transcript of arguments today.

      1. Thanks for the citation. I just finished reading some and scanning some of the transcript.

    1. I guess the Democrats want Democratic party presidents to be able to issue executive orders that become law and can only be revoked by legislation passed by a Democratic party majority legislature. Republican president executive orders and legislation by Republican majority legislatures will be legal nullities void ab initio

  3. Haven’t followed . . . is the “six month wind down” something the administration created, that they could simply nix to end DACA immediately if the ruling goes as Blackman predicts?

    1. I suspect it’s something on the part of the administration, just to give the DACA people some time to make some effort to regularize their status or make travel plans.

      And to give Congress some time to move off their asses. Apparently they’re not going to pass an actual bill to legalize the “dreamers” without poison pill amendments until the clock starts ticking on their deportation.

      1. Brett ,

        They are not going to pass a bill unless Trump says he’ll support it. And he’s not going to support a clean bill.

        It’s not the pro-DACA people who are putting in poison pills. It’s Trump.

        1. They are absolutely putting in poison pills. There are around 800,000 DACA people, but the Democrats keep trying to sneak in 3-4 million (at least), in exchange for virtually nothing, and they use the more vague term “Dreamers” as obfuscation. Their entire aim here is to achieve permanent electoral advantage, of course, so they can advance the rest of their transformative agenda.

          I know you can just as easily say Trump is putting in poison pills because he wants to build the wall, etc. The measures he wants are poison to Democrats of course for the same reason stated above.

          But that’s why it’s called a trade-off. The American people’s support for DACA needs to be viewed in context. The American people support a trade-off. Point by point, I can show you that the things Trump has proposed on immigration as part of a grand bargain, which the media likes to label “far right” and such, are supported by the American people, sometimes 60%, 70%, 80%, and higher. And the polls show Americans support all of this as together as part of a grand bargain.

          Of course, the problem standing in the way of that isn’t just Democrats. Not at all. It’s the Republicans too, it’s the big business lobby, it’s virtually every influential interest aligned against the American people. So what Trump gets from the point persons in this negotiation who happen to be Democrats, is “My offer is this: nothing.” They intend to have it all and not give one inch.

          It’s been clear for a long time that the only shot at success for the real America First agenda is if he wins a second term.

          1. Sounds like you need to talk to that liberal softie Brett about wanting a clean bill.

          2. There are around 800,000 DACA people, but the Democrats keep trying to sneak in 3-4 million (at least),…

            The 3-4 million you’re speaking of, of course, are other people brought to the U.S. as children and with no meaningful connection to their home countries, but arrived too late or were too old for DACA. That’s why they get lumped together with the rest of the “Dreamers.” It’s the same type of people, just outside Obama’s original window.

            Calling them a “poison pill” is actually the “poison pill.” That is, if you’re drawing the line at just existing DACA recipients, you’re arbitrarily cutting off relief for no good reason other than to keep the numbers down.

            …, in exchange for virtually nothing,…

            What is it that you think Republicans wanted, “in exchange?” The Dreamer fixes that were floated already came with tons of caveats and limitations. Some of the pathways to citizenship were ridiculously, absurdly long; penalties demanded were cost prohibitive; and then there would be the non-negotiable bars of public benefits.

            Again, you’re just sort of re-framing things to ignore the nature and extent of Republican demands. The Dreamer fixes were compromised. Republicans wanted more – more restrictions on asylum and refugee migration, more limitations on visas, more money for the wall, etc. And Democrats were willing to give some of that, too – even though it was bad policy!

            It’s been clear for a long time that the only shot at success for the real America First agenda is if he wins a second term.

            It’s bizarre to me that anyone thinks that Trump will have any reason to pursue anything other than a Trump First agenda if he’s re-elected. Surely we know enough about him now than to believe he’ll do anything for the U.S. if he gets another four years.

        2. “And he’s not going to support a clean bill.”

          Why should he, or any other President, support a “clean” bill? The need for DACA is a symptom of an underlying problem. Shouldn’t the bill fix the problem? Build a wall, streamline the process for coming hear legally, etc.

        3. Bernard,

          Any immigration reform that lets in the DACAs must include greater immigration enforcement.

          Otherwise, it’s just an incentive for future illegal immigration. Illegally immigrate, skip the queue, get legalized. Good for everyone. Except poor Americans who find their wages suppressed.

          1. Any immigration reform that lets in the DACAs must include greater immigration enforcement.

            Which the Democrats have offered.

            1. Yes, in much the same way they offered it in ’86: In a form which would be easy to avoid actually delivering on. Authorization for spending down the road, not appropriations for spending now.

              Charlie Brown isn’t actually obligated to try to kick that football, you know. He’s allowed to take into account it’s Lucy holding it, and insist she set it down and back away before kicking.

            2. Not realistically.

              Let’s be honest here. If Democrats had offered funding for Trump’s wall in exchange for DACA being written into law, it would have been a deal both could have accepted easily.

              But Democrats couldn’t accept that. They couldn’t accept funding Trump’s wall (beyond a symbolic dollar). They couldn’t give him the “win” in exchange for DACA. So…here we are.

        4. I love how Democrats demand “clean” bills for their priorities, but reject them for others.

  4. So, help me out. Is the Court setting up a situation they will just follow the lead of the elected branches? If Trump is re-elected, expect DACA to go away via some motivated reasoning, if he loses, expect the Courts to say it’s good to go?

    1. So, help me out.

      As Caphon noted above, the issue is whether “one executive can implement a discretionary policy and it not be subject to revocation by the next … regardless of the subject of such discretion.”

  5. There are really only 3 logically consistent positions, only 2 have been made:

    1. DACA did nothing, thus no one has standing to challenge changes to DACA.

    2. DACA did something, that something was outside the scope of the law, thus it is illegal.

    3. (Mystery argument not yet made). DACA did something, there is a buried portion of the US Code that no party has yet cited that makes this legal, and all previous administrations prior to Obama had been very confused about the law.

    1. One of your three “logically consistent” arguments is a mystery argument that hasn’t been made yet? That’s… something.

    2. 4. DACA is illegal because the President does not have the authority to offer benefits to noncitizens which the law reserves for those who are in the country legally to those who are in the country illegally as “prosecutorial discretion” and even if the courts do not strike it down, because it was established by one President via executive order without going through the administrative procedure process, another President should be able to end it via just an executive order without going through the administrative procedure process.

  6. This was a good read two years ago, and remains so.

    http://www.anncoulter.com/columns/2017-11-15.html

  7. Prof. Blackman and I agree on something.
    That’s my take as well.

  8. I thought that the administration’s positions were not just wrong, but actually impossible to defend. Now I hear that there are at least five votes for ending the program.

    Clearly, the only reasonable response is some sort of complex conspiracy theory.

    1. The two aren’t mutually exclusive or, at least, not as mutually exclusive as it sounds. “Recission is non-reviewable, but if it was your arguments are shit” is a coherent position.

    2. The response is you are an idiot who has no understanding of how the rule of law works and seem to think that one President has the power to do something that another does not based on your opinion of each President.

    3. “five votes for ending the program” is different than “five votes deciding the decision isn’t (or is) reviewable by the Court”. The President’s decision to end the program may follow from the Court deciding the can’t review it, or from the Court deciding it can but also finding the decision is within the President’s purview.

  9. What’s remarkable about the oral argument is how Justice Sottomayor seems to have suddenly gotten religion. She sounds like she just walked in from protesting an abortion clinic. She repeats the phrase “destroying lives” with the sel-righteous air of someone used to doing sidewalk counseling and holding up enlarged pictures of body parts. She says “This is not the about the law. This is about our choice to destroy lives” with the smug, judgmental fervor of a fundie.

    She acts, in short, as if she could could just walk away and joined the other side, as if she had never previously written against making moralizing judgements about termination choices, as if she had never previously believed that protecting Americans’ freedom to make the very choice she now some self-righteously castigates lies is at the heart of what our law is all about.

    1. For years, the American people have been urged to ignore this type of rhetoric, just walk through the sidewalk counselors and their morals and do what you need to do.

      Why should folks who have for years urged the American people to ignore this sort of morals-type rhetoric judging the choices they make, think that people will suddenly pay attention to exactly what they have been urged to unite themselves to all these years, just because it happens to be their own morals that are at stake?

      And this really is sidewalk counselor rhetoric. What Justice Sotomayor said matches exactly the things that get shouted outside an abortion clinics. verbatim. Word for word.

      1. Inure themselves.

  10. I guess liberals want a ruling from the court that Democrat presidents can issue executive orders and can overturn executive orders of Republican presidents, but that Republican presidents cannot issue executive orders that overturn executive orders issued by Democratic party presidents. Why, because Republicans are bad. Inequality is good if it is against people we know are bad. We become a nation of men, not laws.

  11. It’s crazy to me how difficult it is to undo a regulation. Doesn’t seem right.

  12. So I guess if Scotus rules the way Blackman wants he will be celebrating the addition of one more line to his CV, while the deportations go on.

    What a fucking asshole.

    1. I’ll be celebrating too. These invaders don’t belong here, and neither do their fellow countrymen.

  13. At oral argument, the administration denied that its sole grounds were a claim the prior policy was illegal.

    It first said the administration’s decision was a matter of unreviewable prosecutorial discretion analogous to the FDA’s decision not to regulate drugs used in prisoner executions, implicitly suggesting (without requiring the courts to decide) that the prior policy was also a similarly legal exercise of prosecutorial discretion.

    It next said that if the justices find the matter reviewable, they should consider the administration’s policy reasons, and a decision to tighten enforcement is always a rational one for a law enforcement agency to make.

    Finally, it said that only if the justices denied the other arguments should it even reach the question of whether the prior policy was actually illegal.

  14. Can someone explain to me why in the middle of an election year is not the right time to have a fight over immigration policy?

    1. Anybody whose position on immigration policy is unpopular with the voters is going to find that a bad time to have the fight.

      1. Bad for the politicians seeking to get reelected. Great for the people trying to collect true facts about the people they elected, or might want to elect this time around. I doubt the White House wants to announce “We aren’t interested in having an immigration fight right now because it will hurt our chances at reelection.”

        1. And whose needs are the ones American politicians can be counted on to meet? Not in the America envisioned by the Framers, but in America as we now find it? Of course this isn’t said, it hurts election chances and therefore doesn’t meet politicians’ needs.

  15. In a just system, this would have been struck down years ago.

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