The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
The Supreme Court's October 2015 Term was cut short because of Justice Scalia's unexpected passing. As a result, the Justices were unable to decide several of the most important issues on the docket. For example, the short-handed Court punted in Zubik v. Burwell. (To this day, the judiciary continues to grapple over the contraceptive mandate.) And the Court also split 4-4 in Texas v. U.S., which considered the legality of DAPA. At the time, I wrote in the Harvard Law Review that the latter case stood in a unique posture: "Because this case will likely return to the Court following the remand, there will be a rare opportunity to revisit the appeal in a new light."
Of course, I expected Hillary Clinton to win the election, and continue to defend DAPA, as well as DACA. Instead, Donald Trump won the election. His administration promptly terminated DAPA, and after pressure from conservative states, announced the decision to suspend DACA.
The Supreme Court, therefore, was never called upon to decide the legality of DAPA, as well as DACA, directly at least. Instead, the Justices were asked to decide a related, but distinct question: could DACA be suspended based on the Attorney General's conclusion that the policy is illegal.
In January 2018, the Solicitor General submitted a petition for certiorari before judgment. He urged the Court to hear the case as soon as possible in light of the sweeping consequences of the policy. The Solicitor General's urgency was obvious: every day that lapsed, as Dreamers further relied on the policy, would make it more difficult to wind down DACA. The Court denied that petition in February 2018. As a result, the issue could not–and indeed will not–be resolved until June 2020. Right before the next presidential election.
Now the case is at last before the Court. And, based on my reading of oral argument, we may get a third dodge: the Justices will rule that the rescission memorandum is not subject to judicial review. This decision would leave open the legality of the policy for the foreseeable future. And, due to the timing of the wind-down period, the policy may not be suspended until after the inauguration date.
In theory, a Democratic President could simply revoke the cancellation memorandum on January 20, 2021, and allow the Dreamers to renew their status. Indeed, the new President would likely expand the policy to account for people who entered the United States at a later date. At that point, Texas would simply go back to District Court and seek another injunction to block the policy. Throughout this entire period, as the executive's position waxes and wanes, the status of the Dreamers will remain in flux. And the cycle would continue indefinitely.
A Supreme Court ruling based on justiciability will usually be viewed as a minimalist decision (however that term is defined). Why should the Court decide a very difficult question when it doesn't have to?
Justice Gorsuch alluded to an answer in a related colloquy, in which he cast doubt on the benefits of a remand:
JUSTICE GORSUCH: Well, if I might ask a question about that if we're talking about the merits then, and then I –I'll pass off the baton. The reliance interests that we've -we've talked about earlier, I –I think your -your friend on the other side would say we did address reliance interests in a paragraph and we could do it in 15 pages, but we'd say pretty much the same thing at the end of the day, and it would take another six years, and it would leave this class of persons under a continuing cloud of uncertainty and continue stasis in the political branches because they would not have a baseline rule of decision from this Court still on this issue.
The Court should resist the siren call of restraint. There is nothing minimalist about such a ruling. Indeed, another dodge would allow the reliance interests of the Dreamers to become even further cemented in our polity. However difficult it is for the government to justify rescission today, it will become even more difficult to do so in two years when the case comes back up on remand. A punt here would effectively cement DACA as a policy, without ever deciding its lawfulness.
The Court should issue, in Justice Gorsuch's words, "a baseline rule of decision," now. If DACA is illegal, then the administration was justified in suspending the policy. If DACA is legal, then the 46th President could resurrect the policy. I have an opinion on which answer is correct, but I would much prefer a clear decision one way or the other, rather than further dodges. Letting this issue linger for the foreseeable future creates uncertainty and doubt in all three branch of government, and worst of all, leaves the Dreamers under a "continuing cloud of uncertainty."