Supreme Court

Supreme Court Holds Trump Administration Rescission of DACA Was "Arbitrary and Capricious" (Updated)

In what appears to be a quite narrow ruling, Chief Justice John Roberts holds that if Trump wants to get rid of DACA, he'll have to try again.

|The Volokh Conspiracy |

The Supreme Court issued only one decision today, but it was another big one: Department of Homeland Security v. Regents of the University of California—the DACA case. In what was largely a 5-4 decision, the Court held that the Trump Administration's decision to rescind the Obama Administration's Deferred Action for Childhood Arrivals policy was subject to judicial review and was arbitrary and capricious under the Administrative Procedure Act. The Court also rejected, by an 8-1 vote, the claim that the DACA rescission violated the Equal Protection Clause, though there is no majority opinion on that point.

Chief Justice Roberts wrote the opinion for the Court (and a four-justice plurality opinion on the Equal Protection Claim), joined by the Court's four liberal justices (save for Justice Sotomayor on the that latter claim). Justice Thomas wrote a dissent, joined by Justices Gorsuch and Alito. Justice Kavanaugh also wrote a dissent. Note that both dissents were, technically, dissents in part and opinions concurring-in-the-judgment in part, as the dissenters all agreed with the Chief Justice's ultimate resolution of the Equal Protection claim.

The balance of this post will provide some highlights and initial reactions to the decisions. I am confident that my co-bloggers Ilya Somin and Josh Blackman will have more to say about this decision as well (and I suspect they will disagree with each other, so be sure to read them both).

The threshold decision by the majority holding that the DACA rescission is subject to judicial review is significant. While the Administrative Procedure Act (APA) has long been understood to embody a presumption of judicial review, it has also long been understood that exercises of enforcement discretion are generally immune from such review. So the Obama Administration argued its immigration policies (DACA and DAPA) were unreviewable (and also reversible at any time) and the Trump Administration argued that its decision to end DACA was likewise unreviewable. A consequence of this holding could be to narrow the range of administrative actions that are outside of judicial review.

On the merits, the majority opinion by Chief Justice Roberts appears to be quite narrow, and focuses on the paucity of the Trump Administration's initial explanation for why it was ending the policy The Chief Justice explains that the Trump Administration's decision must be evaluated based upon the rationale that was provided at the time the decision was made. According to Roberts, this means that the Court should only look at the Duke memo, and not the subsequent memorandum offered by Secretary Nielsen that later expanded and elaborated on the decision to rescind.

According to Roberts, Acting DHS Secretary Duke was bound by the Attorney General's conclusion that DACA was unlawful, but was nonetheless obligated to consider various approaches to DACA's purported illegality and whether ending DACA would disturb settled expectations. This is a dramatic conclusion, and has the potential to constrain a range of future administrative actions.  Among other things, it seems to suggest that when the Executive Branch concludes an existing policy is illegal, it can't simply stop the policy, but has to publicly examine a range of alternatives even if the action in question is not an agency action with the force of law (such as a duly promulgated regulation). So even though the Obama Administration created DACA with the stroke of a pen, more than the mere stroke of a pen was required to rescind it.

That said, the Roberts opinion is narrow in that it does not consider the subsequent Nielsen opinion and leaves open the possibility that the Trump Adminsitration could stil rescind DACA, provided it adequately examines the relevant considerations in whatever memo or explanation accompanies the decision. The Court's 8-1 rejection of the Equal Protection claim further clears away this potential obstacle to rescission. As noted above, Justice Sotomayor dissented in part in a separate opinion arguing that the Court "prematurely dispose[d]" of these claims, and that the plaintiffs should have had the opportunity to demonstrate that the DACA rescission was motivated by animus on remand.

Roberts opinion concludes:

We do not decide whether DACA or its rescission are sound policies. "The wisdom" of those decisions "is none of our concern." Chenery II, 332 U. S., at 207. We address only whether the agency complied with the procedural requirement that it provide a reasoned explanation for its action. Here the agency failed to consider the conspicuous issues of whether to retain forbearance and what if anything to do about the hardship to DACA recipients. That dual failure raises doubts about whether the agency appreciated the scope of its discretion or exercised that discretion in a reasonable manner. The appropriate recourse is therefore to remand to DHS so that it may consider the problem anew. . . .

Though I plan to dig into the Roberts decision more thoroughly, I am unconvinced by his analysis on multiple levels. I believe DACA was lawful (given the decades-long practice of immigration law enforcement and implementation that allowed forbearance and the receipt of benefits), but I also believe the Trump Administration had no obligation to provide any explanation at all for its rescission, and that the conclusion that DACA was unlawful was more than sufficient to justify its rescission (and would be so even if courts disagreed as to that determination, as what matters is whether the decision was reasonable, not whether it was correct).

Chief Justice Roberts' decision here appears to be of a piece with what I've characterized as his "anti-disruption" approach to judging. He dislikes decisions that alter precedent, invalidate federal statutes, sweep too broadly or (as here) upset settled expectations or cause administrative disruptions. This is also a sufficient priority for him that his concern for disruption will trump his concern for adhering to statutory text or constitutional principle. In these respects, I see his decision today as fitting in with what we've seen from him in a range of cases, including (but not limited to) BondNFIB, and King. 

Justice Thomas wrote the principal dissent, joined by Justices Alito and Gorsuch. According to Justice Thomas, DACA was unlawful from the inception, and that provides ample basis for the Trump Administration's to rescind the program. He writes:

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 Kavanaugh wrote a separate, more narrow, dissent, focusing on the APA question. He stresses that all nine justices accept that the Executive Branch has the legal authority to rescind DACA, and dissents on the ground that the explanation for the DACA rescission provided by the Nielsen memo was sufficient for this sort of action under traditional standards of judicial review. Justice Kavanaugh's opinion was confined to this claim, and assumed, for the sake of  argument, that the decision to rescind DACA is properly subject to judicial review in the first place.

A final note: While I largely agree with Justice Kavanaugh, I think it is fair to note that here (as in so many cases) the Trump Administration adopted a sloppy and incautious approach to policy implementation. As I stress to my administrative law students, government lawyers should be in the habit of dotting every "i" and crossing every "t", and checking such things twice, so as never to give a court that dislikes a policy decision an excuse to invalidate the action on procedural grounds. Though I think the Court today got the legal question wrong, the Trump Administration made it easier for the Court than it should have—and that's something we've seen from this Administration quite a bit.

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  1. I would really love to hear something from one of the small group of legal experts in admin law on this. It’s a complicated case.

    Alas, the conversation is sure to be dominated by generalists who normally never read admin law opinions.

    1. Trump has the right to rescind DACA but he didn’t show his work or legal theory in the margins. Is that a good summation of why the Supreme Court upheld DACA?

      1. It didn’t uphold DACA, it struck down the decision to rescind DACA.

        1. The way I heard it described :

          (1) It upheld Obama’s DACA as legal
          (2) It upheld Trump’s right to rescind DACA
          (3) But Trump was too incompetent to do it right. (in so many words)

          Trump’s bungling clownish stupidity has always been a saving grace of this administration.

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          2. The legality of DACA was not among the questions presented.

            From the Court’s docket:
            The questions presented are as follows:
            1. Whether DHS’s decision to wind down the DACA policy is judicially reviewable.
            2. Whether DHS’s decision to wind down the DACA policy is lawful.

          3. I read the opinion not as saying (1) at all. It distinguished some aspects of DACA from DAPA, suggesting that there are parts of DACA that might be legal even if there are parts that are not. But it’s not part of the holding.

    2. First, it does indicate that the work up front matters. I have no illusions that a district court judge somewhere wouldn’t have enjoined the rescission if DHS had put forth Nielsen’s memo as the original justification, but it would’ve been harder for Roberts to affirm (I think the 9th Circuit’s panel in this case would’ve upheld an injunction). The initial reasoning showed a lack of interest or expertise in admin. law. (I think the rescission should’ve been upheld even under that anemic memo, but that’s a different matter.)

      Second, and this will continue to cut against Republican and Democratic administrations, this case is another example of how policies and administration priorities that everyone agrees are lawful (SCOTUS acknowledges that Trump has the right to rescind DACA) can be blocked for at least an entire term(!) through a single APA case. When it’s a Democratic administration, these types of suits will move back to a Texas district court and the 5th Circuit, and we’ll go through the same process from the other side. Rinse and repeat.

      1. You know full well that leftist judges won’t apply the same logic to their own initiatives.

        1. Which is why I said that the cases would move back to Texas and the Fifth, like they did during Obama’s second term. Now maybe Roberts and the four liberals would short circuit such challenges by staying a district court injunction or ruling during appeal in those cases, but otherwise the process and delay will occur in a similar fashion.

          1. “Roberts and the four liberals”

            You left out “other” after “four”

            1. They are LEFTISTS, not liberals….

              1. And, as leftists, they get to call themselves liberals.

                1. My last pay test was $9500 operating 12 hours per week on line. my sisters buddy has been averaging 15k for months now and she works approximately 20 hours every week.EDc i can not accept as true with how easy it become as soon as i tried it out.

                  This is what do,…….► Home Profit System

      2. “would’ve been harder for Roberts to affirm”

        You are kidding right? Chief Justice Warren the 2nd would have sided with his fellow libs no matter what.

        1. You may be right. Who knows anymore.

      3. Certainly one message here is “do your APA homework before changing rules”.

    3. What’s complicated about it?

      The defenders of Obama’s unconstitutional DACA, which Obama admitted was unconstitutional, relied primarily on the argument that DACA could be rescinded by any President at any time!

      1. Nope. And that shows why we need actual admin law geeks talking about it.

        1. Yup. They did. You can go back and find the links.

          Adler is the admin law expert.

          “I am unconvinced by his analysis on multiple levels.”

          “the Trump Administration had no obligation to provide any explanation at all for its rescission, and that the conclusion that DACA was unlawful was more than sufficient to justify its rescission”

          “it seems to suggest that when the Executive Branch concludes an existing policy is illegal, it can’t simply stop the policy, but has to publicly examine a range of alternatives even if the action in question is not an agency action with the force of law (such as a duly promulgated regulation). So even though the Obama Administration created DACA with the stroke of a pen, more than the mere stroke of a pen was required to rescind it.”

          This seems to be about as harsh of a criticism you will ever see from Adler on a SCOTUS decision.

          1. It’s a little more nuanced. Did you read the opinion?

        2. If I’m not mistaken Adler is the only admin law expert at the VC.

    4. Alas, the conversation is sure to be dominated by generalists who normally never read

      You could’ve stopped there.

  2. So he’ll “keep trying again,” while more leftist judges issue “nationwide injunctions,” saying that the new rule is also “arbitrary and capricious.” The point of the APA was not to let judges substitute their policy preferences for that of the President. Alito’s dissent had it right. They can obstruct a policy preference of the President for his entire term.

      1. Right. Which was the point all along.

      2. The walls are closing in…
        This is the beginning of the end…
        Donald Trump is done….
        Today was a turning point…
        A new bombshell today for the Trump presidency….
        This is a tipping point….

        1. Be careful what you ask for Rabbi — you might get it….

          1. I didn’t buy the stock market dip in March so I’m hoping Joe Biden wins in November so the markets tank again. I’m sitting on wads of cash like an idiot instead of balls deep in an S&P500 ETF.

  3. This is a miserable decision from the court, and twists the law all out of sorts (as is frequently seen by a Roberts decision)

    DACA was implimented through a simple memorandum, with no rulemaking period, in clear violation of the APA, without any consideration of reliance interests. DHS consistently stated ““DHS may revoke or terminate deferred action and begin
    removal proceedings at any time at its discretion.”

    But eliminating this illegal program, passed without any APA rulemaking program now REQUIRES an APA commenting period? That’s….nuts.

    What other programs can be set up with a simply memo, then the APA doesn’t allow for elimination of them? Can Trump set up a simple program with a quick memo that grants Babtist churches a billion dollars a year? Then whenever, whoever comes in next and says “Nope, that’s illegal…” and shuts down the program. Then the churches sue, and the payments continue for 4 years, while the court case makes its way through the system. And then the courts decide “Well, you didn’t follow APA procedure in ending these illegal payments to the church, and didn’t consider reliance interests. Try again.”

    Is that how this works?

    1. The Court didn’t say that the implementation of DACA was legal. Given the reasoning I would say they don’t think it was. But you can’t illegally rescind and illegal law. If DACA is illegal (specifically the deferred removal), then this is, too. Two wrongs don’t make a right

      (See below to see I think both were fine regarding deferred removal)

      1. “You can’t illegally rescind an illegal law”.

        I assume you mean policy here (laws are different, and passed by Congress). But this leads to madness

        Let’s take something simple. Unauthorized payments. The administration makes unauthorized payments via a new policy to a company. A new administration stops these payments, saying they’re illegal. The company sues, saying the APA wasn’t followed, and the long commenting and rulemaking period is required.

        It twists a whole bunch of perverse incentives.

        1. I don’t think everything has to go under notice and comment. Some things comply with the APA as long as they are properly explained. That is what the administration didn’t do here.

          1. And the explanation that DACA was illegal, according to the current court decision logic on an extremely similar case, wasn’t enough?

            1. What? The Court said it was enough for the benefits part. But that is what the cases were about and the administration didn’t say anything about if or how that applied to deferred action. That is why it failed the APA. I personally think the deferred action is akin to prosecutorial discretion and therefore that aspect of DACA was legal for Obama to do and legal for Trump to rescind as they did. The Court’s logic here would appear to apply just as much to DACA’s implementation as to rescision. It doesn’t need notice and comment but it isn’t prosecutorial discretion so the APA does apply and they have to adequately state the reasons. I think that dooms the deferred action part of DACA as well since they didn’t have authorization. But this case isn’t about whether DACA was legal. It was about whether the rescision needed to comply, and if so did comply, with the APA. Again just because one administration does something illegal doesn’t mean the next can follow suit to undo it. There is a legal avenue to undo and the initial illegality supplies the perfectly valid reason to do so that the APA requires. But they have to state that at the time.

    2. I haven’t had time (ok, to be honest, the energy) to read the opinion this morning, but from my knowledge of the underlying decisions and Adler’s tweets, I’d be quite surprised if the court ruled that the rescission required formal notice-and-comment. I thought the majority found it was subject to APA review, but not that it required notice and comment rulemaking process to rescind. Many apologies if that is in fact what the court held today.

      1. It was subject to the APA. The vast majority of APA issues require notice and rule making.

        The opinion didn’t formally ask for notice and rule making. I wouldn’t be surprised if courts did ask for it, in the future, in the cancellation of the policy. The dissent notes that DACA should have had notice and rule making periods, before implimentation.

        1. The vast majority of APA issues require notice and rule making

          This is quite untrue. Guidance letters and adjudication are both common ACA issues in court.

          1. Guidance letters are by definition not binding. But you are correct that adjudication is an equal method of making rules.

            1. APA issues include guidance letters. Not all issues involve rulemaking.

              A friend of mine did a survey of Supreme Court cases that dealt with guidance letters. They are justiciable.

    3. “But eliminating this illegal program, passed without any APA rulemaking program now REQUIRES an APA commenting period? That’s….nuts.”

      That’s also not the holding. Please read footnote 1 of the opinion more carefully.

      “…then the APA doesn’t allow for elimination of them?”

      That isn’t the holding in this case. The APA allows for the elimination of DACA.

      “Can Trump set up a simple program with a quick memo that grants Babtist churches a billion dollars a year?”

      No, but for reasons that have nothing to do with DACA.

      I don’t agree with the holding because I think the Duke Memorandum should have been sufficient to overcome arbitrary and capricious, but the holding is merely that when an agency sets up a prosecutorial discretion policy in a way that creates reliance interests, removal of the program has to comply with the APA. I’ve only read the opinion (and not the dissents) but do they even disagree?

  4. I posted this on reddit, but it bears repeating here too.

    Anyone who asserts this is a liberal decision isn’t paying attention.
    1. The result was one of formalism over the APA. That isn’t really left or right and if anything leaned right as it required the government to be more transparent with reasoning

    2.The ruling necessarily implies that DACA, even the non benefit parts about simply being allowed to remain in the country, was not an act of prosecutorial discretion. If it was then the APA wouldn’t apply. That means when a conservative goes to court to say DACA is illegal then the liberals can’t say prosecutorial discretion. They have to explain how a law delegated them the authority to make the rule, and I doubt they’ll be able to convincingly find one.

    Ultimately this is a win for conservatives. It doesn’t even stop Trump from rescinding as long as the DHS fully states it’s reason. And a claim that this might be illegal (I think it isn’t but that is because I do think it was prosecutorial discretion which is why I also think that this rescision was ok) is plenty colorable to succeed.

    1. “Ultimately this is a win for conservatives.”

      LOL

      No one is going to buy this tripe. Its a typical one way ratchet decision, liberals do what they want and it can’t be repealed.

      1. Not even liberal/conservative. This happens to have been a Democrat policy and a Republican reversing it.

        But now the principle is set. So going forward, the president has the power to create all manner of rules by stroke of pen, and anyone wishing to reverse those rules will have to prove to the court that they really, really have a good reason (which presumably means one the court agrees with).

        I suppose this explains the crazed passion over supreme court nominations. Roe v. Wade is certainly a good argument generator, but I don’t think it is as life-and-death to most people as the passion around appointments and court packing would make it seem. But if we are moving into a world where the executive rules by fiat and the judiciary either offers assent or blocks their action, equally by fiat.. then judicial appointments matter even more than presidential elections.

        1. ” Roe v. Wade is certainly a good argument generator, but I don’t think it is as life-and-death to most people as the passion around appointments and court packing would make it seem.”

          That’s a pretty ironic statement concerning a ruling that literally handed out a constitutional ‘right’ to kill.

        2. If that’s the case, then what’s to stop Trump (or any other President in the future) to just issue a ‘Pen edict’ on the subject running parallel to Obama’s but obviously in opposition to it?

      2. Well, Bob, weren’t you telling us just yesterday on another thread that conservatives should win at all costs? Why are you upset when liberals follow your advice and do the same thing?

        Note: I do not agree that that’s what the liberals did here, but for sake of argument, I’ll take Bob’s position and run with it.

        1. I’m upset at Roberts who was a supposed conservative but isn’t.

          We ought to emulate the win at all costs libs, you are correct.

          1. You do realize that you’ve then given up the moral high ground and can’t really complain when you see liberals winning at any cost?

            Back up a minute. Conservatives already have the electoral college, the anti-democratic Senate, and gerrymandered house seats. Surely it’s fair for liberals to have at least one institution, like the courts. Conservatives can’t be expected to have *all* the unfair advantages.

            1. “moral high ground”

              That’s for church, not politics.

              I can still complain when I lose though I admire the left’s success ethic.

              1. An interesting interpretation of Jesus’ teachings: morals only apply inside church. Virtue has a cost. If it didn’t, it wouldn’t be a virtue. But I am glad you are just honest that you would rather win than be virtuous.

                (Or am I mistaken that you are Christian?)

    2. reddit is cancer. why do you waste your breath there?

      1. I use it for nerdy stuff.
        40K lore, Stellaris discussions, Star Trek, D&D.

    3. This assumes that the stated rationale is the real rationale. We won’t know how much of current jurisprudence against Trump is just TrumpLaw until another administration is in place, and the precedents created actually do or don’t get applied.

      1. Do you always assume bad faith? Aside from Sotomayor and Alito all the Justices have shown to be more than willing to make rulings that would appear to against type. This is pretty standard APA stuff here.

      2. Actually, I think we do know how much of the current jurisprudence is Trump law. 100%.

    4. 1. The government was plenty transparent. The AG said DACA’s illegal, based on court judgements with DAPA. We need to kill the program because it’s illegal.

      1a. Here’s the craziness. DACA is in essence two parts. A. Deferred Removal. B. Benefits granted. The court decision on DAPA said the benefits were illegal. And if it was just deferred removal, that would fall under INA and prosecutorial decision, and not be reviewable.

      But what the SCOTUS said is, yes, your reason is B is illegal, OK. But you didn’t give good reasons for ending A. This was arbitrary and capricious. Even if A was alone wouldn’t be reviewable.

      1. This is where we are reading it differently. I don’t think they are saying A alone isn’t reviewable. My reading is that that A is reviewable as well. That is that it isn’t prosecutorial discretion.

      2. This isn’t necessarily true. There are aspects of A that go beyond mere prosecutorial discretion (and are therefore reviewable) but which are not necessarily illegal for the reasons in B.

  5. “But the arbitrariness and caprice were the whole point!!”

  6. Conservatives are always just one vote away from a reliable conservative majority.

    1. That’s what you get when you keep changing what it means to be “conservative.”

      1. Conservative (n): A moderate from 6 months ago

    2. Funny how that works. Who are the scheming liars that arrange this and how do they do it?

      1. Who are the scheming liars that arrange this

        Jumping straight to a conspiracy.

  7. This is comical. Remember when Obama admitted DACA was unconstitutional and then did it anyway?

    At the time, the defenders of DACA’s constitutionality, such as Ilya Somin who very obviously behaves as a zealous advocate for his open borders ideology, primarily resorted to screeching “BUT THIS IS AN EXECUTIVE ACTION THAT CAN BE RESCINDED EASILY BY ANY PRESIDENT AT ANY TIME!!”

    1. It is easy. The admin just managed to screw up easy.

      1. Wrong. The super legislature decided they didn’t want to allow this, and so they didn’t.

        Per Adler, “the Trump Administration had no obligation to provide any explanation at all for its rescission, and that the conclusion that DACA was unlawful was more than sufficient to justify its rescission.”

        1. Prof. Adler disagreeing with the Supreme Court does not mean the main opinion is made in bad faith.

          Reliance interests require due process. This is the law.
          Deal with it; do not retreat to paranoid speculation about motives.

  8. This opinion is a waste of time. Summary: Go back and say pretty please.

    “The dispute before the Court is not whether [the Department of Homeland Security] may rescind DACA. All parties agree that it may. The dispute is instead primarily about the procedure the agency followed in doing so”

    What the heck was Roberts thinking wasting his time on this?

    1. They are trying to run out the clock – on the administration and for DACA beneficiaries who are establishing ties to the community and starting families of their own.

      1. Right, that’s always the argument. Let “temporary” people stay for a long time, and then when you try to remove them, say “Hey, they have CITIZEN children and have families here! It’s an extreme hardship to deport them now!”

        I don’t know why leftists think America is obligated to turn itself into a mestizo nation. If whites are going to displace themselves, do so with 105 IQ Asians, not 85 IQ mestizos or 75 IQ Africans.

      2. Trump fans complaining about ‘running out the clock’ are among my favorite tone-deaf losers.

      3. Those who fail to learn from history — “Operation Wetback” was Eisenhower, no rabid right-winger.

    2. “What the heck was Roberts thinking wasting his time on this?”

      That not politicizing SCOTUS means not addressing contentious issues and just kicking the can down the road to be dealt with at a later time. Apparently he fails to realize that such inaction is a major force driving the politicization of his court.

  9. As an a aside, Roberts refers to the Dreamers as “unauthorized aliens,” while Thomas calls them “illegal aliens.” No one calls them “undocumented immigrants.”

    1. Well, why would you call them undocumented, in this particular instance? Part of DACA was giving them documents, so they’re not like your usual illegal alien who’s using forged ID.

  10. Sandra Day O’Roberts strikes again.

    I wouldn’t worry about the details of what will be required of Administrations going forward. It will depend on the politics of the case and the election calendar.

    1. It is with great sadness that I concede you may be correct about that.

  11. Power to the oligarchy!

    “The judiciary of the United States is the subtle corps of sappers and miners constantly working underground to undermine our Constitution from a co-ordinate of a general and special government to a general supreme one alone. This will lay all things at their feet. … I will say, that “against this every man should raise his voice,” and, more, should uplift his arm..”

    Thomas Jefferson

  12. “Roberts decisions avoid disruption”

    Well, except when he invented an entire new category of taxes and penalties out of whole cloth to support an unprecedented and brand new federal authority to require health insurance purchases by all Americans.

  13. ” So even though the Obama Administration created DACA with the stroke of a pen, more than the mere stroke of a pen was required to rescind it.”

    And Joe Sixpack is supposed to retain respect for the courts and the legal profession?

    1. Did Joe Sixpack ever respect courts and lawyers? How many simple people have had their lives ruined by a family court?

      1. Family Courts do not ruin lives. For his troubles, Joe SixPack can blame his tendency to think with the wrong head and consequent failure to follow one of two axioms of male self-preservation: (1) Never stick your dick in crazy, and (2) if you’re already married to the crazy, get a vasectomy and resign yourself to a life of misery until the youngest is 18.

  14. I’m not really persuaded by the Court’s arbitrary and capricious analysis here, although I am happy with the result.

    In any event, rescinding DACA was ultimately extremely bad move both from a moral standpoint and a political one.

    Deporting people brought here as children from the only home they know is gravely immoral. It is a cruel punishment for a decision they did not make. If such a program were widespread I think a fair number of future historians might refer to it as akin to other forms of ethnic cleansing.

    Because of the moral depravity of this, it was never good politics to rescind it. Obviously judges were not going to be sympathetic to it. And attacking the Court for this decision isn’t going to inspire widespread support except among the already converted. “Elect me so we can have more judges that will let me deport people from the only homes they have ever known” is not a position that will earn widespread support.

    1. If a parent steals a car, and gives it to their child, is it immoral to take the car back from the child? Despite it being the only car the child has ever owned?

      1. Does taking the car separate them permanently from their livelihood, friends, and family and place them in a place where they may not even know the language?

        This is an obtuse analogy. I think you would be far more upset if I kidnapped you and sent you to a country where you have no connections and don’t speak the language than you would be if I stole your car. Even if it was your only car.

        1. “Does taking the car separate them permanently from their livelihood,” It could.

          But sure, here’s a different example.

          If a parent illegally bribes a university into letting their kids in, and it’s discovered, should the kids still be allowed into the university? Or should they be expelled?

          1. If they are expelled would they end up by force away from their friends and family in a country they have no connection to?

            1. They would end up by force away from their friends and livelyhood for sure if expelled from college.

              1. So when you get expelled from college, someone will prevent them from seeing their friends anywhere in the country? They can’t meet up at a bar or a restaurant or their off campus house? They can’t reapply to college? Are they now unable to communicate that they need food, shelter, or life saving medicines? Because that can happen to someone deported into a country where they have no connection.

                1. They can see their friends in a different country. They can apply for a visa to come back to the US. They can communicate just fine in other countries, it just takes more work.

                  1. Tell that to Jimmy Aldaoud. Except you can’t because he died in Iraq without insulin.

                    But, I have to ask, as I usually do when people defend the immoral: Are you willing to personally take a child from their home, at gunpoint, load them on a plane and fly it to another country and force them off, then leave? If you are? What would you say to them when they ask why you are doing this to them? Would you feel bad? Would you feel like you are doing something wrong?

                    1. “Are you willing to personally take a child from their home, at gunpoint, load them on a plane and fly it to another country and force them off, then leave?”

                      Like Elian Gonzalez?

                    2. Yes. Exactly. Do you actually think I agree with that at all?

                    3. And that’s a tragedy. But an isolated tragedy doesn’t make good policy.

                      But when you defend and support illegal behavior, you get more illegal behavior. And you make a lot more people a lot worse off in the end.

                    4. Isolated tragedy, it’s not isolated if hundreds of thousands of people are affected. And just because something is “good policy” doesn’t make it morally good. You know in your heart it is wrong, probably don’t have the guts to do it yourself, but defend it on vaguely utilitarian grounds that aren’t readily apparent anyway.

                    5. I don’t like it, but it’s necessary. There are lots of things I don’t like, but which are necessary.

                      When you “help” this person with their illegal actions, you end up hurting others. And the failure to see how you are hurting others is a major flaw here.

                    6. The hurt is abstract and based on economic models and assumptions about how society works. Meanwhile the harm to the deportee is extremely real and apparent.

                    7. You’re arguing against risk-based assessment of future harms? Seriously? That it doesn’t somehow count because it’s “abstract” compared to an immediate harm?

                    8. LawTalkingGuy:

                      If the applicable statute says that the child shall be deported should the president refuse to faithfully execute this law? Could you state the principle that you think justifies the president in faithfully executing particular laws, as required by Article II Sec. 3 and his oath of office?

                    9. That is, justifies the president into refusing to faithfully execute…

                    10. Hey, swood.

                      Is your issue with the requirement to have factual findings before making a broad use of prosecutorial discretion?

                      Or do you not think discretion applies in this area, and believe that the President must deport all illegals in the country in order to abide by his oath?

                    11. Or do you not think discretion applies in this area

                      The president has been given very wide discretion in order to be able to handle truly unique cases. Do you think it was intended to allow him or her to make major structural changes to the law? For example, if the tax rate is X the president can decide that a rate of .5X would be good for the economy and exercise his discretion to refuse to prosecute people who pay at least .5X. What is the principle, if any, that would disallow this but permit him or her to use the same type of discretion to carve out exceptions in the immigration laws?

                    12. Swood, I don’t really take a position on it. I’m more concerned with the moral matter. I assume you also believe there are moral limits to legal commands. Replace “deport” with “execute” and see what you think he should do.

                    13. You’re arguing against risk-based assessment of future harms?

                      Yes if the response to the risk assessment is an extremely serious and known and concrete harm like ripping someone from the only home they have known. And I assume you have your limits too. I don’t suppose you would support rounding up undocumented immigrants and placing them in extermin

                    14. Ah, got cut off:

                      cpnt’d: extermination camps to reduce the unemployment rate of citizens. And under some articulated legal theories regarding the undocumented, there is actually nothing to prevent this.

                    15. When granting broad discretion, you grant the potential to use it in unexpected ways.
                      But I do get your concerns. Seems to me that requiring an administrative finding when using discretion to enact broad policy strikes the right balance between broad discretion and unfettered power.
                      Which seems to be the current state of the law.

                    16. requiring an administrative finding when using discretion to enact broad policy strikes the right balance between broad discretion and unfettered power.

                      Did Obama act in DACA in accordance with an administrative finding?

                      So the president appoints administrators who find that a 50% reduction in the tax rate for certain taxpayers would be just the discretion that is needed, and he has struck the right balance and can go ahead?

                    17. Re: LawTalkingGuy, “extermination camps ”

                      Umm… What “legal theories” are you possibly talking about. My “legal theory” is called laws against murder, which explicitly prohibit this.

                      They get returned to the country where they are citizens. And their family who came over illegally can be returned with them, so they have family which knows the area well. Their family can help them adjust to the new country, as is their responsibility, as they brought them over illegally in the first place.

                    18. LawTalkingGuy:

                      I assume you also believe there are moral limits to legal commands. Replace “deport” with “execute” and see what you think he should do.

                      Shouldn’t the president refuse to accept a position that requires him to vow to execute immoral laws? Or should he vow, knowing that he will break his vow?

                    19. I don’t like it, but it’s necessary.

                      No. It’s not “necessary.” Nothing makes it necessary. No great evil will befall the country if it’s not done, and a lot of evil will befall those deported.

                    20. You’re arguing against risk-based assessment of future harms?

                      Where are these assessments that show letting the Dreamers stick around is long-run harmful?

                      And I’m not talking about stuff anti-immigrant zealots pull out of their rear ends.

                    21. Armchair:

                      Currently, at least one judge on the DC Circuit, Karen Henderson believes the Fifth Amendment does not apply to undocumented immigrants. If that is the case, there is no constitutional prohibition to their summary execution.

                    22. Bernard,

                      It’s necessary, because if it isn’t done, it’s de facto open borders.

                      Anyone who gets in, no matter if it’s legal or illegal, can stay, because it’s “wrong” to deport them.

                      And there are a lot of problems with open borders.

                    23. “Are you willing to personally take a child from their home, at gunpoint, load them on a plane and fly it to another country and force them off, then leave?”

                      What does this have to do with DACA? Unless I’m missing something, DACA doesn’t apply to anyone under 8 years old, and does apply to people up to 39 years old. Plus, anyone who was brought into the country after 2012 is still eligible for deportation, regardless of their age. What makes this one category of illegal immigrants worthy of special protection?

            2. In addition, you avoid the question of perverse incentives here.
              For example. How should someone immigrate to the U.S. ?
              Should they:
              1. Follow the law, and immigrate legally, even if there’s a queue and wait.
              2. Immigrate illegally, and wait to be legalized through amnesty or amnesty-like measures, while living illegally.

              1. They were brought here as children. They didn’t make the decision. If you’re three and brought here by your parents you didn’t decide anything. It is immoral to punish innocent parties to deter other potential lawbreakers.

                1. “It is immoral to punish innocent parties to deter other potential lawbreakers.”

                  See the above examples, in regards to cars and college educations.

                  You appear to have no hesitation to remove cars and college educations from the innocent parties there. Why not?

                  1. Well I actually don’t necessarily agree with the college education thing. If the student is otherwise performing well and took no part in the deception it would be wrong to punish them. As for the car, it would be wrong if the car was seized and went anywhere other than to the original owner.

                    But again, you are being willfully obtuse about the stakes here with your analogies. Being forced to leave your home permanently for a place you have zero connection to, and may be extremely unsafe, is absolutely not the same as a temporary setback that occurs in your home.

                    1. OK, allow me to state this more thoroughly.

                      Parents are responsible for the decisions for their children and for the effect those decisions have. Parents generally want the best for their children. That’s not a surprise. And parents will, on occasion, do illegal things to assist their children.

                      And here’s where we get into a conundrum. We don’t want people doing illegal things. But, if they do those illegal things, and get what they want, EVEN IF THEY ARE CAUGHT, then they’ll continue doing them. That’s simply rational, and a cost-benefit-risk analysis.

                      If, for example, you really want your kid to have a new car, and you know even if you’re caught, the kid will keep the new car, then you’ll just steal it for him. It’s just a price, and a win-win calculation for you. You either give him the car, and are caught, or better, give him the car, and aren’t caught. And so, you’ll see a rash of car thefts. The question is, who is hurt? (the person who’s car is stolen).

                      If you can bribe your kid’s way into college, and you know she will stay in school, even if the bribery is found out, then you’ll do it. Even if you’re caught. Again, win-win. But, if the bribery is found out, and the kid is kicked out, then it may not be worth it. So, you’ll see less bribery. Who is hurt here? The kid who wasn’t using bribery to get into college, and didn’t get in because the bribing kid took his place.

                      With illegal immigration, again, if you can get your kid U.S. Citizenship just by bringing them over illegally, it’s a win-win. You’re either not caught (and the kid gets US citizenship), or you are caught, deported, (maybe sneak back in), and your kid still has U.S. citizenship. Who is hurt here? The legal immigrant who was trying to get in, but got his quota reduced because there were too many illegal immigrants (as well as other people, low wage employees, etc.)

                      If you want to discourage illegal behavior, then you need for it not to pay off if it is caught. If it’s caught and STILL pays off, then people will keep doing it. It’s win/win. But there’s always a loser here, and it usually the people who play by the rules, and don’t do things illegally. So, does it suck if the DACAs are deported? Yes. But their parents made an illegal choice, and they may have to live with the consequences of that illegal choice. Otherwise, you just encourage illegal behavior, and hurt the people who are trying to follow the rules and legally immigrate.

                    2. But their parents made an illegal choice, and they may have to live with the consequences of that illegal choice.

                      Yeah. So you are punishing the kids for the sins of the parents. That is immoral. You can justify it on the policy grounds of deterrence, but can’t claim it is moral in any way.

                    3. Again, you didn’t disagree with seizing the car from the kid, the one the parents stole for him.

                      That’s “punishing the kid” for the sins of the parent.

                      You understand why this happens. The “sin of the parent” directly benefited the child.

                    4. And again, your analogy is completely obtuse to the stakes involved here. You can’t support that morality of deporting kids so you have to compare it to cars to pretend you aren’t defending the indefensible.

                    5. You’ve got to make your mind up here.

                      You don’t like the example with the car, but you’re clearly punishing the child for the sins of the patents.

                      Either this is moral, or it’s not. Which is it? Or is it OK to punish the kid for the sins of the father with some cases, and not with other cases?

                    6. I think it is more likely than not immoral unless it is readily apparent that the car belongs to someone else and they can find that person and return it. There you have competing concrete moral imperatives that are apparent as opposed to abstract and hypothetical ideas like the “theft of an education” or the social and economic impact of more people being present in the country. When you are confronted with an extremely real harm to an innocent party you cannot justify that on abstract policy grounds, anymore than you could justify child imprisonment in support of any other policy goal.

                    7. “I think it is more likely than not immoral ”

                      I simply can’t support this. People should not be allowed to benefit and profit from their crimes, and this would allow it.

                      Steal a car, give it to your kid, and your family gets to keep the car. “Can’t punish the kid.”

                      Sell a million dollars of cocaine on the street, put it into your kid’s bank account, and keep the money (Or the “kid” keeps the money). Otherwise you’re punishing the kid.

                      Your kid is stuck as backup QB for high school football. Go, break the starting QB’s legs. Look, your kid is now starting QB!. Can’t punish the kid, he gets to stay as starting QB.

                      No. It’s not right.

                    8. Armchair, all of these analogies still pale in comparison to getting removed from your home.

                      Not getting to keep a million dollars is not the same as being removed from your home by force. Nor is not getting to start as QB.

                      You are using these analogies to justify supporting something you know you know deep down to be very wrong.

                    9. LawTalking,

                      If you can’t support deportation for breaking the law, illegal entry and illegal entrance, then you simply don’t support immigration laws being enforced. Which is a de facto open borders situation.

                      That has a whole host of different problems.

                  2. These analogies really are pathetic.

                    Deporting someone has orders of magnitude, maybe orders of magnitude of orders of magnitude, greater impact than taking back a stolen car.

                    1. Bernard,

                      It’s a simple question really. Should somebody be allowed to profit, via themselves or via their family, for a crime committed?

                      My opinion is no.

          2. Is there any evidence that the kid was complicit? If not, why would they be expelled? What’s your argument for expelling them?

              1. The link is about Georgetown expelling a student for lying on his application. The student denies it (on the basis that he had no knowledge of the lie) but that’s disputed. I’ll ask again: if it’s true that the student had no knowledge of the bribe, what’s your basis for suspending them?

        2. BS they don’t know the language….

          1. And your basis for that is? I mean if they have lived in the United States from a very young age and don’t use anything other than English regularly they won’t know it.

            And I assume you are imagining Spanish speakers, but it could also be French, Vietnamese, Cambodian, Tagalog, Chinese, Arabic, any number of other European or African languages, etc., that might be less common in the States than Spanish so they might have less opportunities to use it anyway.

      2. If someone steals your car, you don’t get to just steal it back. There are legal processes for recovering your chattels.

        https://en.wikipedia.org/wiki/Detinue

    2. I didn’t know morality was determined democratically? I thought morality was derived from the word of God.

      1. The morality of any act can be determined independently based on several philosophical approaches and may or may not be commensurate with popular opinion.

        1. Do you work for the North American Man Boy Love Association (NAMbLA)?

          1. No. What’s that have to do with anything?

        2. Were right and wrong products of the big bang or did they come into existence at some other time?

          1. An interesting and old question that I don’t have an answer to. But, regardless of whether moral principles are discovered or created as time goes on, they exist.

            1. But, regardless of whether moral principles are discovered or created as time goes on, they exist.

              Well, that begs the question as to whether they exist. If the propensity to see things in moral terms developed in homo sapiens because they increased the survival possibilities of those possessing this way of viewing the world wouldn’t morality just be a social construct, one that exists only for those who perceive and accept it? Social constructs exist for those who recognize them. Does morality exist even for the sociopath?

              For the Christian, Jew or Muslim morality exists as a command of God, regardless of anybody else thinks of the matter. How does morality exist objectively in a materialistic world? Wouldn’t it have to have been created at the big bang?

              1. Consider for a moment why atheists are not noted for their immorality.

                Do you blame it on the big bang?

                1. Consider for a moment why atheists are not noted for their immorality.

                  Could you provide a reference to the enhanced moral standing of atheists? That’s really a new one.

                  You must be excluding the opinions of those who believe that violation of the Great Commandment is the most extreme immorality. My question remains: How does morality exist objectively in a materialistic world?

                  1. Not enhanced. Normal.

                    The Great Commandment renders this issue degenerate. Along with all moral questions regarding those who do not share your faith.

                    Looking to morality as in having a distinction between right and wrong, I would ask you if YOU believe that atheists cannot make such distinctions.

                    I do not require metaphysics to see that they do. Do you?

                    Note that I am not an atheist. Or an agnostic.

                    1. The Great Commandment renders this issue degenerate. Along with all moral questions regarding those who do not share your faith.

                      Because the Great Commandment simply represents morality for some but not morality for all? Is that what you think morality is all about? Each person has his own and nobody’s is the “real” morality?

                    2. No, because by it’s nature, the GC means we cannot have a discussion regarding the morality of those who do not share your faith.
                      They are all per-se immoral to you. As an axiomatic matter.
                      Which makes me wonder why you think this is even a discussion worth having.

                    3. No, because by it’s nature, the GC means we cannot have a discussion regarding the morality of those who do not share your faith.

                      So you think that those who have adopted the GC as a moral truth did not arrive there the same way as everybody else who adopts a moral standard? They are the unreasonable ones and everybody else is reasonable?

                      They are all per-se immoral to you. As an axiomatic matter.

                      Whereas the person who believes that rape is wrong does not hold this belief axiomatically?

                    4. You seem to be arguing that you axiomatically believe that atheists are immoral.
                      And then you are asking me to justify why atheists have a moral sense. But based on what you’ve laid out as your belief system, that does not seem possible. Any example I give you can just say ‘they don’t believe in God, so they’re immoral.’

                      That’s a dumb game. I won’t play unless you take away that short-circuit for the sake of argument.

                    5. You seem to be arguing that you axiomatically believe that atheists are immoral.

                      Where did I say that I believe that atheists are immoral, much less that I believe so axiomatically? I talked about “those who believe that violation of the Great Commandment is the most extreme immorality.” And why do you assert that such people believe this axiomatically, or at least arrive at their beliefs in a manner different from the way others arrive at theirs?

                      Any example I give you can just say ‘they don’t believe in God, so they’re immoral.’

                      But look, any philosopher who arrives at a system of morality has to start from something that to him is axiomatic and reason from there. Why are his axioms OK but theistic axioms are not?

                    6. I’m not arguing against faith-based philosophical precepts. I’m arguing that the GC is not a useful thing to take as a given when we are discussing the morality of atheists because it short-circuits the discussion.

                      But to keep you from continuing to go in circles, I return to my previous question – do YOU observe atheists to be notably immoral. If not, why do you think that is, if you believe they cannot arrive at a sense of right and wrong absent some external influence (e.g. big-bang created morality)?

                    7. I’m not arguing against faith-based philosophical precepts. I’m arguing that the GC is not a useful thing to take as a given when we are discussing the morality of atheists because it short-circuits the discussion.

                      I wasn’t proposing it be accepted as a given by both sides in an argument. I was responding to your assertion that atheists are not noted for their immorality. Suppose somebody said that rapists are not known for their immorality and you replied that rape is itself immoral, and the other said that he can’t have an argument with somebody who believes axiomatically that rape is immoral. That is this argument.

                      But to keep you from continuing to go in circles, I return to my previous question – do YOU observe atheists to be notably immoral. If not, why do you think that is, if you believe they cannot arrive at a sense of right and wrong absent some external influence (e.g. big-bang created morality)?

                      Of course atheists have a sense of right and wrong. I’m sorry that you have difficulty understanding me. My only point is that the atheist has no way of asserting that his particular morality is THE objectively true morality. That it is a real thing that exists, regardless of what anybody might think about it, and not just a set of social rules agreed upon in order to make life more agreeable. Suppose somebody said that it is immoral for you to have more assets than anybody else in the world. You would ignore that as not a rule of morality that is applicable to you. Suppose somebody says that he rejects the notion that rape is immoral. Of course the criminal law is applicable to him but is the immorality of rape applicable to him? If so, what makes it so?

              2. Homo sapiens developed survival responses to gravity. That doesn’t make gravity impossible in a materialistic world. (Or, if you think it does, you’re the one begging the question.) I acknowledge that you don’t think objective morality exists in a material world. So what?

                1. I acknowledge that you don’t think objective morality exists in a material world. So what?

                  In a materialistic world. The point was only to respond to LawTalkingGuy who asserted that atheistic systems of arriving at morality are just as valid. My point is that in a theistic world morality is an objective, real thing, and doesn’t depend on anybody’s assent. Things are “really” wrong, in an absolute sense. But otherwise morality is a human construct and is subjective. It’s wrong for you but not for me. You can think that something is absolutely wrong for everybody but that’s just your opinion.

                  1. You do not need to believe in God to believe morality is objective.

                    Metaphysical != supernatural.

                    My church is full of such people.

                  2. Not only is objective morality possible in a materialistic world, theistic morality either proves that there is a non-theistic objective morality, or denies entirely the existence of an objective morality.

                    If what is moral is what God commands, that means God only commands things that are moral (which implies that there is an objective morality that God merely communicates, in which event it exists independently of God). Alternatively, if what God commands is moral (regardless of the content of the command) then there is no objective morality; it’s subjective, in this case the subjective whim of God. The salient feature of moral relativism is that it can change. And if God can change morality, then the moral theory is not objective.

      2. See that’s your problem you don’t understand the origin of morals and that they are context dependent.

  15. I suspect Trump is privately happy with the decision. The rescission makes him look tough to his base, he gets to bash Roberts, and he avoids the wrath of the majority had he implemented the rescission.

    1. Trump-world might be, Trump himself is so all over the place, it’s impossible to tell.

    2. Didn’t take very long …

    3. “These horrible & politically charged decisions coming out of the Supreme Court are shotgun blasts into the face of people that are proud to call themselves Republicans or Conservatives,” Trump said in one tweet. “We need more Justices or we will lose our 2nd. Amendment & everything else. Vote Trump 2020!”

      In the second tweet, Trump asked: “Do you get the impression that the Supreme Court doesn’t like me?”

      1. I am assuming he is also referring to Bostock there, but I got the impression on Monday that he didn’t care very much. Someone must have told him his DOJ opposed it and that it is linked to a broader pattern of judges undermining his greatness.

      2. I’m thinking it was wise to deny cert on the gun cases.

    4. Josh R this is an extremely poor political analysis. First of all Trump wants to give massive amnesty to DACA and beyond, he’s said so many times including in his first SOTU. Yet he also wants RAISE Act, end chain migration, stop illegal immigration permanently through security and closing loopholes, etc. Democrats want none of that and offer nothing, because demographic replacement through massive amounts of legal and illegal immigration is the beginning and end of their short, medium and long term strategy and chances. The Republican establishment also wants none of it because both working class and white collar class wages must be suppressed as much as possible through labor oversupply. Given this political dynamic, there is little path forward for the Trump agenda (which polls show is broadly popular with Americans and even in some cases more popular with minorities than with whites) until the footing is made more equal by rescinding DACA, which was enacted with the stroke of a pen and should be able to be ended with the stroke of a pen. Second, this hurts Trump because voters will stay home when they correctly see the truth of the matter which is that voting and winning makes little difference. It doesn’t hurt Republican establishment types that don’t mind being in the minority.

      1. First of all Trump wants to give massive amnesty to DACA and beyond

        He wants to give massive amnesty only in exchange for meaningful immigration reform.

        Second, this hurts Trump because voters will stay home when they correctly see the truth of the matter which is that voting and winning makes little difference.

        No, they’ll realize that this action by the Supreme Court was just a delaying action. They can’t fault trump for that. He just has to give the specified reasons next time. Trump is their only hope of achieving immigration reform and he has given them no reason to question his sincerity on that score. You’re suggesting that his supporters are just going to give up on that and placidly accept the Democrat approach to immigration (i.e., open border). Won’t happen. But this decision did save Trump from having to threaten the Democrats with revoking DACA, just before an election, in order to force them to the immigration bargaining table, and thus risk alienating some voters on the fence who don’t want these people deported.

  16. “You seem to consider the judges the ultimate arbiters of all constitutional questions; a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy. Our judges … and their power [are] the more dangerous as they are in office for life, and are not responsible, as the other functionaries are, to the elective control. The Constitution has erected no such single tribunal, knowing that to whatever hands confided, with the corruptions of time and party, its members would become despots. It has more wisely made all the departments co-equal and co-sovereign within themselves … . When the legislative or executive functionaries act unconstitutionally, they are responsible to the people in their elective capacity. The exemption of the judges from that is quite dangerous enough. I know of no safe depository of the ultimate powers of the society, but the people themselves.”

    Thomas Jefferson

    1. Tom SAID a lot of good things about judicial despotism but when he had the opportunity to DO something after Marbury, he passed because he liked the result. So here we are.

      1. What did he have the opportunity to do, that he passed on? Marbury v Madison struck down the law giving the Supreme Court jurisdiction over Marbury’s case. What was Jefferson supposed to do?

        1. Get Marshall impeached, get a Constitutional amendment clarifying that the courts could not strike down an act of congress.

          “Marbury v Madison struck down the law giving the Supreme Court jurisdiction over Marbury’s case. ”

          Right, he won the case, Marbury didn’t get his commission. So he grumbled about despotism and let the despotism take root.

          1. Get Marshall impeached, get a Constitutional amendment clarifying that the courts could not strike down an act of congress.

            If he couldn’t even impeach Samuel Chase how was he supposed to get Marshall impeached? After Marbury no federal legislation was struck down until Dred Scott in 1857. How was he supposed to arouse the interest of people in this when it appeared that the court was using admirable restraint? What argument was he supposed to make to convince people that the Supreme Court threatened the constitution? Which side was more likely to violate the constitution, congress or the courts? Furthermore, Jefferson had no inkling just how far afield the court would eventually go.

            1. He didn’t even try. Amending the constitution on the basis the court was seizing power rightfully belonging to the people might have worked. He had huge congressional majorities.

              The Chase impeachment failure was a disaster for the republic.

              1. Neither CJ Marshall nor the Marbury decision originated the idea that the Supreme Court could strike down an act of Congress. When you have a free week, you might want to read Jack Rakove’s great book Original Meanings.

  17. I think that its becoming clear to me that Roberts has no independent brain. When Scalia was alive, Roberts muse was Scalia was Scalia (or maybe Kennedy). With both gone, now its Kagan.

    When someone else gets appointed, Roberts may change his muse gain.

    1. The Obamacare case was when Scalia was still alive.

    2. I disagree that Roberts has no independent brain. What you are seeing more are his idiosyncracies and his personal avoidance of sweeping pronouncements striking down legislation, existing case law, etc. when there is a way to avoid that. He is so afraid of being the next Roger Taney that he does not want to be like Justices Alito and Thomas and essentially have an alter-ego of the Warren Court making sweeping changes to the law based on the most dubious of precedents when it is not even necessary to decide the case. If you look at case assignments, he seems to assign it to Alito less in 5-4 cases than he does to others or himself (excluding Thomas, but that is because Thomas is usually writing a concurrence for only Thomas).

  18. “If [as the Federalists say] “the judiciary is the last resort in relation to the other departments of the government,” … , then indeed is our Constitution a complete felo de so. … The Constitution, on this hypothesis, is a mere thing of wax in the hands of the judiciary, which they may twist and shape into any form they may please. It should be remembered, as an axiom of eternal truth in politics, that whatever power in any government is independent, is absolute also”

    Jefferson

  19. “There is no danger I apprehend so much as the consolidation of our government by the noiseless, and therefore unalarming, instrumentality of the Supreme Court.”

  20. “One single object … will entitle you to the endless gratitude of society; that of restraining judges from usurping legislation.”

  21. Once again, Roberts grabs for what he can in order to defeat a cheapjack and unserious Republican position. This was a result that had to be reached. No more Bush v. Gores.

    1. WTF? Are you retarded?

  22. Chocolate Jesus apparently just got to do what he wanted. Bad Orange Man better explain himself. Where were these bastards when Obo was spreading the ink?

    1. That’s weird. For years we heard that Obozo was a terrible law-defying guy because he kept getting actions blocked or overturned by the Supreme Court. Apparently they were somewhere.

  23. Soooo, how does all this fit into the faux-righteous slogan ‘if Congress won’t act I will’?

    1. Sorry, there’s a new judicial standard. It’s called “if Congress won’t act the Supreme Court has the right to enact its preferred legislation.”

  24. “Among other things, it seems to suggest that when the Executive Branch concludes an existing policy is illegal, it can’t simply stop the policy, but has to publicly examine a range of alternatives even if the action in question is not an agency action with the force of law (such as a duly promulgated regulation).”

    I should probably read the opinion first, but wouldn’t this be limited to only those policies that interfere with a settled expectation? If the EPA has been enforcing regulations concerning X, but then decides X isn’t covered, is there a settled expectation that is frustrated when the EPA changes course?

    1. I don’t think so. Section III.B, the agency’s obligation to explain why it rejected alternatives to rescinding an illegal policy is a separate problem from the failure to consider the reliance interests. See page 23 of the slip opinion.

      1. I have now read the opinion, and re-read III.B and page 23. I see what you are saying. But the opinion raises another rejoinder. If agency action X enacts A and B, but B is illegal, rescinding A requires more than just asserting that B is illegal. And so I don’t think it’s the case (from the opinion) that we can assume the entire policy is illegal merely because one aspect of it is illegal. If A and B were both illegal, the rejection of alternatives section (III.B) would have written differently, and the failure to consider the reliance interests would have been the deciding issue.

        1. “If agency action X enacts A and B, but B is illegal, rescinding A requires more than just asserting that B is illegal.”

          Why? Why isn’t B’s illegality enough of a justification to rescind Action X?

          Alternatively, if A & B have to be considered separately, why wasn’t the memo about B’s illegality enough to justify the termination of B?

          “he failure to consider the reliance interests”

          How can there be reliance interests in a temporary program that is specifically labeled as a temporary program?

          1. I think the memo is sufficient to satisfy the APA’s arbitrary and capricious standard. I think the opinion is right to raise the problem, but as a matter of administrative law, the problem was sufficiently met by the government. So I agree with you.

            Re: temporary program, rights can vest in temporary programs. But I also think language in DACA speaks to the extent of the reliance interest. If the plaintiffs’ reliance was unjustified, they should (and will) lose.

            1. I think I’m coming around on that.
              As a functionalist, I think textualism ignoring intent is overly narrow. Similarly, I also think that forcing the factual record to ignore further developments is being overly formal and ignoring reality.

              But given the record, I think Roberts’ opinion is correct.

  25. So if the BATFE writes a memo saying it will consider a voter registration card a valid license to posses, carry, keep and bear any type of firearm and associated ammunition or accessories, and that license will be valid in all US states, territories, and possessions do all state infringements on the second amendment go away?
    Asking for a lot of friends.

    1. No, because the 9th Circuit is already issuing a nationwide injunction of that. And a nationwide injunction against attempts to lift that injunction.

  26. Nothing is so permanent as a temporary government program.

  27. Justice Thomas very succinctly summed up what should have been a 9-0 decision based on teh facts: 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.

    The entirety of the majority decision can be summed up in what now seems to be the presiding legal principle in court cases with a liberal judge deciding: “Orangeman Bad!”.

  28. I would assume without deciding that the APA applies, and then say that an administration can always enforce the law more strictly or rescind a prior administration’s prosecutorial leniency.

    “The President shall take Care that the Laws be faithfully executed.” Congress’ law said that DACA participants were in the US illegally and that execution of the laws requires their deportation. No more reason is needed than that. It simply doesn’t matter what was written in some memo or whether Justice Roberts thinks it was correct or clear or not.

    1. But that wasn’t the question before the Court.

      I believe there are other lawsuits about whether DACA is unconstitutional, though I don’t know where they are in the system.

  29. I would also be in lined to think that programs created without rulemaking can be rescinded without rulemaking, and if rulemaking was needed, that makes the program’s inception illegal.. What is sauce for the goose must be sauce for the gander.

    In my view the same discretion that permitted Obama to create the program permitted Trump to rescind it.

    1. I’m not sure that’s a universal logical rule.

      For adjudications, there is the famous Goldberg v. Kelley about how vested interests are harder to end than they are to grant due to due process rights.

      I don’t see any reason why such logic would not apply to broader systematic grants.

  30. “[Chief Justice Roberts] dislikes decisions that alter precedent, invalidate federal statutes, sweep too broadly or (as here) upset settled expectations or cause administrative disruptions.”

    In other words, Roberts demonstrates once again that he is Chief Wielder of the left-handed ratchet of stare decisis, in charge of advancing creeping Marxism in The United States.

  31. After 50 years of studying and practicing law, I’ve learned that when a court finds something invalid because it is allegedly “arbitrary and capricious,” it couldn’t find any legal error, but decided to make a political decision.

    1. Pretty much. “Arbitrary and capricious” means “It’s not the policy I would have chosen.”

    2. ‘Arbitrary and capricious’ is a standard of review, not a type of error.

      I don’t know in what area you practiced but I hope it was not admin!

      1. Providing yet another demonstration that you haven’t read the opinion and have no idea what you are talking about. Why don’t we look at what the opinion actually says, like Sarcastr0 should have done before smugly insulting Tall Paul.

        “That omission alone renders Acting Secretary Duke’s decision arbitrary and capricious.”

        “That failure was arbitrary and capricious in violation of the APA.”

        1. Both of your quotes indicate that a given error cleared the A&C threshold.

          A&C is not itself the error.

      2. I’m the last one to call foul on a little bit of performative pedantry every now and again, but I’m not following your diagnosis of a misuse of terminology in Tall Paul’s comment.

        1. Hey –

          I’ve learned that when a court finds something invalid because it is allegedly “arbitrary and capricious,” it couldn’t find any legal error
          Here, the Court did find legal errors, which is pointed out. You may not think they are valid errors, but the opinion does not lack for errors.

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