Thoughts on the Supreme Court's Sound, but Very Narrow Ruling on DACA [Updated]

The decision is only a temporary reprieve for DACA recipients, and still permits Trump or a future president to repeal the program if he is willing to pay the political price of doing so.


Today's Supreme Court ruling is a victory for DACA recipients, but a very limited one. The Supreme Court correctly concluded that the Trump administration's shoddy rationale for rescinding DACA violated the Administrative Procedure Act because it failed to offer any justification for repealing the central element of the DACA program: forbearance on deportation of undocumented immigrants who were brought to the United States as children. But Trump or a future president could still rescind DACA if they are willing to offer such a justification in the future and pay the political price of doing so. For that reason, I strongly agree with co-blogger Jonathan Adler's view that this is a very narrow decision.

Today's ruling does not definitively end either the legal or the political battle over DACA. Ultimately, only Congress can do that, by finally passing a law definitively protecting "Dreamers" from deportation and giving them permanent resident status in the United States. Until then, they will not be fully safe.

The Court's decision addresses the legality of the Trump administration's decision to rescind DACA, an Obama administration policy suspending deportation of some 800,000 undocumented immigrants who came to the United States as children. DACA allows such migrants (often referred to as "Dreamers," after the Dream Act, which failed to pass Congress) to stay in the U.S. as long as they arrived in the  country when they were 15 years old or younger, were 30 or younger when the program began in 2012, have not been convicted of any crimes as of the time they apply for the program, and have either graduated from a U.S. high school, are currently enrolled in school, or have served in the armed forces. In addition to suspending deportation, the program also allows DACA recipients to obtain authorization for work in the US and accrue "lawful presence."

The majority opinion by Chief Justice John Roberts concludes that the administration's rescission of DACA was illegal, because it violated the Administrative Procedure Act's requirement that federal agency decisions may not be "arbitrary and capricious." As Roberts recognizes, this is a very permissive standard. But, in this case, the Department of Homeland Security fell short of it because its rationale for ending DACA relied on the notion that the program's work authorization and law presence provisions are illegal, while failing to offer any justification for abolishing its central feature—"forbearance" from deportation:

In short, the Attorney General [in his opinion on the legality of DACA] neither addressed the forbearance policy at the heart of DACA nor compelled DHS to abandon that policy. Thus, removing benefits eligibility while continuing forbearance remained squarely within the discretion of Acting Secretary Duke, who was responsible for "[e]stablishing national immigration enforcement policies and priorities." 116 Stat. 2178, 6 U. S. C. §202(5). But Duke's memo offers no reason for terminating forbearance. She instead treated the Attorney General's conclusion regarding the illegality of benefits as sufficient to rescind both benefits and forbearance, without explanation….

Even if it is illegal for DHS to extend work authorization and other benefits to DACA recipients, that conclusion supported only "disallow[ing]" benefits…. It did "not cast doubt" on the legality of forbearance or upon DHS's original reasons for extending forbearance to childhood arrivals….Thus, given DHS's earlier judgment that forbearance is "especially justified" for "productive young people" who were brought here as children and "know only this country as home," App. to Pet. for Cert. 98a–99a, the DACA Memorandum could not be rescinded in full "without any consideration whatsoever" of a forbearance-only policy,

If anything qualifies as "arbitrary and capricious," it is failure to provide a rationale for repealing the policy "at the heart" of the program the administration wanted to rescind.

The Department of Homeland Security did offer some policy rationales for rescinding forbearance on deportation in a memorandum issued many months after its initial decision to rescind. However, the Court concludes that the APA requires the agency to put forward its reasons at the time a policy change is made. Thus, the arguments in the later DHS memorandum "can be viewed only as impermissible post hoc rationalizations and thus are not properly before us."

The requirement of a contemporaneous explanation may seem like arbitrary formalism. But the Court points out some good reasons for it:

Requiring a new decision before considering new reasons promotes "agency accountability," Bowen v. American Hospital Assn., 476 U. S. 610, 643 (1986), by ensuring that parties and the public can respond fully and in a timely manner to an agency's exercise of authority. Considering only contemporaneous explanations for agency action also instills confidence that the reasons given are not simply "convenient litigating position[s]." Christopher v. Smith Kline Beecham Corp., 567 U. S. 142, 155 (2012)…. Permitting agencies to invoke belated justifications, on the other hand, can upset "the orderly functioning of the process of review," SEC v. Chenery Corp., 318 U. S. 80, 94 (1943), forcing both litigants and courts to chase a moving target. Each of these values would be markedly undermined were we to allow DHS to rely on reasons offered nine months after [Acting Secretary] Duke announced the rescission and after three different courts had identified flaws in the original explanation.

The majority opinion also concludes that the administration failed to properly consider the "reliance interests" of DACA recipients, in making its rescission decision.

In the lead dissent, Justice Clarence Thomas, joined by Alito and Gorsuch, argues that DACA was illegal, and that provides sufficient justification for rescission. He argues that even the "forbearance" aspect of DACA is illegal because the Obama administration lacked the power to adopt "programmatic" exemptions from deportation, as opposed by "case by case" determinations. For reasons I summarized here and here, this distinction between systematic  and "case-by-case" enforcement discretion makes little sense:

[T]he difference between case by case examination and categorical rules is one of degree, not kind. Unless case by case discretion is completely arbitrary, it must be guided by some sort of generalizable criteria, such as the severity of the offense. And if general rules like this can be applied by low-level law enforcement offenders handling particular cases, they can also be applied systematically by the president, their ultimate superior.

In any event, the administration's rationale for rescinding DACA did not rely on this argument.

In a solo dissent, Justice Brett Kavanaugh contended that the Court should have accepted the later DHS memorandum, because "post hoc" rationales are only forbidden when offered by lawyers in litigation, not when developed by the administration. The majority has what I think is a good response to that argument:

JUSTICE KAVANAUGH asserts that this "foundational principle of administrative law," Michigan, 576 U. S., at 758, actually limits only what lawyers may argue, not what agencies may do…. While it is true that the Court has often rejected justifications belatedly advanced by advocates, we refer to this as a prohibition on post hoc rationalizations, not advocate rationalizations, because the problem is the timing, not the speaker. The functional reasons for requiring contemporaneous explanations apply with equal force regardless whether post hoc justifications are raised in court by those appearing on behalf of the agency or by agency officials themselves.

The Court's decision strikes me as correct, in so far as it goes. But it is a very narrow ruling. It does not prevent Trump or a future president from rescinding DACA in the future. Indeed, as a legal matter, doing so would be relatively easy. All Trump would have to do is have DHS issue a new rescission memorandum that explicitly cites some policy rationale for abolishing forbearance on deportation. Alternatively, it could potentially abolish employment authorization and "lawful presence," while leaving forbearance alone.

In my view, deporting the DACA recipients would be both deeply unjust and harmful to our economy and society. But satisfying the APA's "arbitrary and capricious" standard does not require a good or even reasonable justification. It just has to meet very minimal standards of plausibility. Competent DHS staff could almost certainly come up with something that qualifies.

The main constraint on the administration's options here is political, not legal. DACA is a very popular program, and even a president as hostile to immigration as Trump might not want to abolish it in a way that requires the administration to explicitly say they want to deport the Dreamers, as opposed to hiding behind technical legal arguments. Perhaps the administration is unwilling to pay that political price, especially in an election year.

Political considerations aside, the narrowness of the ruling and the ease with which the administration could potentially get around it should allay concerns that the decision will make it difficult for future presidents to reverse predecessor's executive actions. They can still do so as long as they meet fairly minimal procedural standards.

The Supreme Court majority opinion also does not resolve the issue of whether the employment authorization and lawful presence elements of DACA are legal or not. These questions may well continue to be litigated in the lower courts.  I have previously argued that the employment authorization provision is clearly legal, while the "lawful presence" provision is more questionable, but can easily—if necessary- be severed from the rest of DACA. But these issues remain unsettled, and could even potentially return to the Supreme Court, should DACA remain in force under Trump—or should a future administration reinstate DACA after Trump rescinds it again.

Finally, an 8-1 majority of the justices (with only Sonia Sotomayor dissenting) rejected the plaintiffs' argument that DACA rescission was unconstitutional because it was motivated by discriminatory animus against Hispanic immigrants, and therefore violated the Equal Protection Clause of the Fourteenth Amendment.

I think Justice Sotomayor makes some good points in her solo dissent on this issue. She is correct to argue that, under Supreme Court precedent, Trump's bigoted statements against Latino immigrants during the 2016 election provide evidence of discriminatory motive that shifts the burden of proof to the government—requiring them to show they would have enacted the same policy even aside from the illegal motivation. But, here, I don't think it would be difficult to prove that.

The belief that DACA is illegal is a longstanding and widely held view among conservative Republicans. It is not something that arose merely as a justification for acting on bigoted statements Trump made during the 2016 campaign. I think that view is wrong. But that doesn't make it a mere pretext for bigotry. Had a more conventional Republican won the 2016 election—even one who is himself Hispanic, such as Ted Cruz or Marco Rubio—there is a good chance they would have tried to rescind DACA, as well.

This history makes DACA repeal different from the 2018 travel ban case, where the policy at issue clearly grew out of Trump's notorious campaign promise to enact a "Muslim ban," the official justification for it was transparently bogus, and it is highly unlikely that anything like it would have been enacted in the absence of Trump's unconstitutional motive. The Court was disastrously wrong about the discrimination issue in the travel ban case. But it is on much sounder ground here.

I am not entirely sure even Justice Sotomayor would actually conclude that DACA repeal is unconstitutional based on discriminatory motivation. Her opinion merely concludes that the issue should have been remanded for further consideration by the trial court, at which point the administration could  potentially have addressed the issue by making the sort of argument I described above.

In sum, today's ruling is an important, but very limited victory for DACA and the Dreamers. The latter have reason to celebrate. But their safety still remains in doubt. Trump or a future president could still potentially rescind DACA, and today's decision creates little in the way of legal obstacles to doing so. Only congressional action can truly free the Dreamers from the spectre of deportation.

UPDATE: In the initial version of this post, I misread Justice Thomas' dissent as accepting the legality of the forbearance element of DACA. I apologize for the mistake, which has now been corrected. I have also added a brief explanation of why I think Thomas is wrong on that issue.



NEXT: Oregon County Imposes Race-Based Mask Requirements

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of Reason.com or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

  1. This is driving while black enforcement of picayune procedural minutiae. The Trump administration must follow every rule to the letter and be judged against an extreme pedantic standard. The courts blithely defer to the Obama Administration even when they do clearly illegal things.

    1. Wasn’t the spin ‘the Obama administration has lost so many court cases it shows how lawless they are’ just recently?

      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. 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. Yeah, and it would be so unfair for the Trump administration to be treated as if they were black!

      1. Double standards are indeed unfair. That was the point.

  2. Before conservatives meltdown re: Roberts perhaps the ‘party of personal responsibility’ might want to save some ire for what even many experts who disagree with the decision say was a rather sad effort by the administration here? When you face a balancing test and don’t do a good job on your end there’s going to be a good chance you lose.

    1. It will be interesting to see the number of Trumpestas comments. I am guessing that most conservatives don’t much care to see DACA gone. You make a good point that there is a continuous series of sloppy work by the Trump Administration and that should be the focus of those opposed to DACA. Had this effort been handled correctly DACA would be gone by now. As it is it will remain on the books, drive DACA supporter (Hispanic ancestry and others) to the polls, and remain under President Biden, until Senate Majority Leader Schumer call for a vote on a new Dreamers bill.

      1. Accurate – if chilling in its prophecies – post, M4e. Sloppy lawyering has been the banged-up hallmark of most Administration legal efforts to date.

        1. Makes sense. All the competent conservatives didn’t want to work for this administration, or got purged out along the way.

          1. Gotta get rid of that Deep State!

  3. Oh good, Mr. Open Borders chimes in.

    1. Mr. Don’t use state violence to inhibit the free movement of human beings.

      1. There are times that I think the mistake was not putting land mines on the Mexican border.

        1. Moat with alligators.

          1. Ah, the pro-life party.

            1. Pro innocent life. But if you do something that you know will get you killed and you die, it’s a Darwin Award.

              1. Conservatives like to say this a lot, but who counts as “innocent” tends to be an ever shrinking circle. I mean, you’re essentially arguing that the deaths of kids being taken by their parents over an invisible line are justified because they are not innocent.

                1. A moat is not invisible.

                  1. Moats okay but mines out, then? Well, at least you’re not totally hopeless.

                    1. Mines create messes, alligators clean up after themselves.

                2. Dr. Ed is on the same level as Kirkland, and his comments deserve as much respect.

                  Neither one is representative of their respective sides

                  1. No, that is not correct. The doctor is a mixture of insight, jokes, trolling and some weirdness.

                    Kirkland is a bigot and a troll without a single redeeming feature.

        2. Dr. Ed reaching for new lows.

          1. No, I neglected to mention machine guns.
            So there….

    2. And at an “often libertarian” blog, no less.

      (Well, that’s how it advertises itself.)

    3. Actual libertarianism, on my libertarian blog? Intolerable.

  4. Newsflash: Incompetent administration continues to demand special favors from Supreme Court; occasionally gets hand slapped because incompetent administration does things incompetently.

    Next: dog bites man.

      1. Open wider, Aktenberg78.

        Prof. Volokh can’t save you.

        I’m no longer certain he can save himself.

      2. You know who you sound like?

        A federal judge telling this Administration what to do, after trying to come up with reasons to uphold their actions, and failing.

        A lot of this isn’t hard; if the Administration was even moderately competent (or interested in competence) they wouldn’t lose cases like this.

        1. Nah, they’d keep losing them, but the rationale would have to be different.

          1. For some people a Deep State conspiracy is more likely than that te administration was less than competent in this effort.

            1. Fuck off, liar.

              1. Aren’t you worried about the Volokh Conspiracy’s civility standards?

                People have been censored and banned for less.

          2. Just funny that Obama never had to provide zero rationale for the legality of DACA at all.

  5. This constant assessment of intent in current society, is extremely problematic due to the left leaning media and academia which constantly frames right leaning viewpoints as immoral/unethical/wrong and usually fails to accurately present their arguments. So here Roberts decides Trump’s intent is bad while Obama’s is pure. Microaggressions are just ascribing negative intent to the innocuous actions of white people. This is very troubling. Idiocracy is a documentary. People need to read Against Empathy and understand that formal logic and reason should guide decision making.

    1. “So here Roberts decides Trump’s intent is bad while Obama’s is pure. ”

      Yeah, you don’t know what you’re talking about, do you?

    2. How is New Vulcan coming?

    3. “[L]eft leaning media and academia which constantly frames right leaning viewpoints as immoral/unethical/wrong.”

      I think right leaning people tend to do a pretty good job of this on their own. Usually I get the impression that right wing viewpoints are immoral/unethical/wrong from the things that self-described right-wing people say. One reason why it’s pretty easy to decide Trump has bad intent is to listen to things he says and things his supporters say.

      1. See Ed and Bob above.

  6. You fail to understand how popular the “law and order” argument will be — and you fail to anticipate how the working class (including Blacks and legal immigrants) will feel about illegal aliens in an economic downturn (which is coming).

    DACA was the first lawlessness, and then there were the hordes at the border and then the idiots blocking highways and now the thuggery in our streets. People have had ENOUGH and you forget that any revocation of DACA will result in more thuggery in our streets.

    People will cheer Trump suppressing that with force. Never forget that what Mayor Daley did in Chicago back in 1968 was popular with a majority of Chicago voters, as he got re-elected. Those who hate Trump will still hate him, but other will love him.

    1. This guy will still be spouting this ‘silent bigot majority’ stuff when Trump’s approval rating is back in the 30s.

      1. It’s ironically funny when the “this guy” is making quips about some other guy as “this guy”. Total lack of self awareness.

        1. I guess winning the culture war can lead to a bit of swagger.

    2. Rescinding DACA would have resulted in the bare thuggery of ICE agents deporting people from their homes due to the decisions of their parents. You don’t actually care about thuggery, you’re just mad your thugs are hamstrung for the moment.

      1. “bare thuggery”

        Or “lawfully exercising authority”.

        We have immigration laws. ICE enforces them as lawfully directed with court review.. I thought you libs were all “Rule of Law”.

        1. You know me well enough by now to know that I’m often more concerned with morals than law.

          Legal thuggery is still thuggery, and is often more odious because people will defend it. There is no question that taking someone from the only home they have ever known by force is pure thuggery, no matter what the law says. It just so happens to be thuggery you like and won’t have to personally engage in yourself.

          1. Most of these mestizos came when they were 16, not as little children.

            1. Still kids. Also: did you buy a set of calipers when you decided to become an open bigot?

          2. You are an anarchist really.

            Not that it will matter to you but usually they just send you a letter to report for deportation. I would expect these innocent law abiders to obey.

            1. And when you don’t report? What happens?

              I’m not an anarchist because I believe an extremely limited legitimate use of force is occasionally necessary to protect people in society. I also broadly believe in the goals of the welfare state for resource distribution, but I don’t think force is actually necessary to ensure that it works in the modern era.

              Basically, my moral and political sensibilities are Rawlsian although I think he was probably less idealistic than me.

              1. Imagine a world where these kids grow up to be conservatives. Now, in the privacy of your own head, ask yourself, truly, if you would feel the same way?

                I know I would, but would you?

                1. LTG is many things, but one of them is principled.
                  If you will recall he is a pacifist with the courage of his convictions.

                  1. Please resist the temptation to answer questions asked to other people specifically.

                    1. Instead of just admonishing Sarcastro, why not ask the proprietor to ban him for failure to follow the rules?

                    2. Propriety is a rule? Well, then you would be banned, but Sarc wouldn’t.

        2. “bare thuggery”

          Or “lawfully exercising authority”.

          Could be both. There are such things as thuggish laws, and thuggish enforcers.

  7. I don’t think the “political price of doing so” is going to be as high as you think. We’ve lost over 20 million jobs because of COVID and the shutdown, and many of them are permanent losses, regardless of what people think.

    I don’t think there will be the appetite for legalizing more people now that the “They do jobs Americans won’t do” argument won’t fly anymore.

  8. The opinion indicates that all but Part IV of the majority opinion was written by the Chief Justice. However, it doesn’t indicate who wrote Part IV. Obviously, it was someone in the majority, but it wasn’t Roberts and it wasn’t Sotomayor . That means it must have been Ginsburg, Breyer, or Kagan. But which one?

    1. That’s not it.

      The Chief Justice wrote the entire majority opinion (for the court).

      However, Sotomayor did not join in part IV.

      Since Sotomayor did not join in that part (re: equal protection, animus), that is not part of the majority opinion with five justices.

  9. “Today’s ruling does not definitively end either the legal or the political battle over DACA. Ultimately, only Congress can do that, by finally passing a law definitively protecting “Dreamers” from deportation and giving them permanent resident status in the United States.”

    So, what you’re saying is, neither the political nor the legal battle can ever end until your side prevails? Only you getting what you want can ever definitively end this dispute?

    The other side isn’t allowed to prevail?

    1. Brett,
      That’s an absolutely fair point. I suspect that the OP wrote poorly there, and actually did intend to include the phrase, “Ultimately [for the pro-DACA side], only Congress can do that, by…”

      If that was not left out inadvertently, then I agree that it doesn’t even make logical or legal sense, as you put succinctly and accurately in your second and third paragraphs.

  10. The Obama’s administration’s policy decisions on how to use the president’s discretion under immigration law were just that, policy decisions. The fact that those policy decisions led to a bunch of implementing regulations that people then “relied on” (you can’t legally, imho, “rely” on a reg based on a reversible policy decision) should be irrelevant. If Obama wanted to entrench change, he should have gone through Congress. Trump should be able to reverse a policy decision as easy as his predecessor made it. One can argue that Trump could have just announced the policy change and that would be that. But it would be weird if the president gets less deference undertaking a more extensive review process of a prior regulation then just announcing that given that he has as much discretion as his predecessor, he is simply changing policies.

    1. And I wrote that before seeing Jonathan’s post, arguing, as I do, that Trump didn’t have to present any argument at all for making this change.

      1. Knowing nothing with satisfy and another round of lawsuits on different criteria will appear regardless, why not take another bit at the apple and rescind DACA (again)? Somin’s opinion is that doing so will hurt him politically, but his base got him elected the first time, and he can firm it up by said bold action.

    2. Ilya Somin in 2014:

      “The deferral of their deportation may be reversed at any time, either by Obama himself or a successor.”


      1. But in any manner? This is the Administrative *Procedures* Act that was invoked. The Court says it could be reversed following the proper procedures.

        1. But the APA wasn’t followed in creating DACA in the first place; How can it be optional in creating a program, and obligatory in ending it?

          1. It can be different for rescinding vs. starting because of reliance interests.

            1. Yes, because judges can do whatever they want. This is exactly what I predicted would happen back then. Obama said he couldn’t do anything because it is the role of Congress. Then he said I’m going to go ahead and do it anyway because Congress doesn’t agree with me. Then the liberal hacks and open borders ideologues claimed it was okay and simply prosecutorial discretion which could be changed at any time. And I said no, just watch and see, the judicial oligarchy will say that now people have relied on this and you can’t change it.

            2. “It can be different for rescinding vs. starting because of reliance interests.”

              How can there be reliance interests in a temporary program?

              1. neither the Government nor the lead
                dissent cites any legal authority establishing that such features automatically preclude reliance interests, and we are
                not aware of any. These disclaimers are surely pertinent in
                considering the strength of any reliance interests, but that
                consideration must be undertaken by the agency in the first
                instance, subject to normal APA review. There was no such
                consideration in the Duke Memorandum.

                How would the temporariness of a program, if it does not have a clear ending, not create reliance interests in the benefits it bestows?

      2. To bad for Somin, the internet is forever. That is, if he cared about consistency.

    3. As I recall, the DACA paperwork itself informed people that they shouldn’t rely on its continuation, but that they were just benefiting from an act of discretion that could be revoked at any time.

  11. “Political price”?? You mean political benefit.

  12. “Had a more conventional Republican won the 2016 election—even one who is himself Hispanic, such as Ted Cruz or Marco Rubio—there is a good chance they would have tried to rescind DACA, as well.”

    So basically it’s a case of “Orange Man Bad “.

    1. Uh, you do get he’s arguing for the administration here, right?

    2. Marco Rubio likely would have done it without the overt bigotry and with some level of operational competence.

      Ted Cruz? 50-50.

  13. “Very Narrow”

    This logic will not be used against open borders in the future! Only for it.

    “The decision is only a temporary reprieve”

    The 4-year temporary reprieve from allowing a President from exercising his rightful powers continues, but the super legislature may reverse course in due time depending on who wins upcoming elections.

  14. You know, all of this would have been thoroughly avoidable if Mitch McConnell hadn’t taken a scorched earth approach to refusing to pass anything Obama sent. There is broad public support for DACA, and there’s no reason Congress shouldn’t have passed it. Except they wouldn’t because Obama wanted it to happen.

    Karma. This is definitely karma.

    1. No, there’s no broad public support, not if you tell people the truth. If you say “Do you support allowing people who were brought as children and are productive people to stay?” they answer yes. If you say “Do you support allowing people who claim they came at age 16, but are 35 now, have 4 misdemeanor assaults and DWIs, and are working minimum wage jobs while collecting public assistance to stay,” they answer no.

      You can parade the rare Harvard physics grad in front of cameras, but the vast majority are low functioning people, much like the rest of Latin America.

    2. Oh yeah, and fuck off, liar.

    3. I’m not sure you can blame this entirely on Mitch as much as I sure would like to.

    4. You have it right, Karma.

    5. “There is broad public support for DACA”

      In 2009-2011, Dems had an 80 vote House majority and 59 senators.

      No bill then. If it was so popular should have been easy.

      1. It passed the House and got 56 votes in the Senate.

        1. Hagan, Pryor, Ben Nelson, Tester and Baucus — all Democrats, voted to filibuster.

          If it was a priority these votes could have been obtained.

          1. So four Democrats voting to filibuster proves that the Democrats didn’t even want it.

            Do you interpret every single thing that happens as a confirmation of your political opinions?

            Where do you get your glasses? I’d find a better optician.

      2. You may recall Congress and the President were working on other things at the time, like Obamacare. Besides which, that Democrats didn’t pass it doesn’t excuse Republicans who refused to even consider it.

    6. I have come to realize that the ultimate problem for the Dreamers is precisely that their cause is so obviously just.

      Because of this, everyone in the immigration debate has at one time or another tried to use them as a bargaining chip: Democrats for comprehensive reform, Republicans, to enact all sorts of restrictionist policies. Too few people in the political sphere have just said “you know what, these people should be in the country, let’s just pass a bill and get it done”. Because they think there’s some political advantage to be gained by not doing that.

      1. Yea, that’s it. It’s so just. Whew. You live in an alternate universe.

        You’re only right in that they are the bargaining chip, and neither side wants to piss off their base by what they think they should get from the other for letting them stay.

        1. I think probably about 20 percent of the public thinks it is unjust, and of that group, probably some fraction actually thinks it would be just but just doesn’t want to take a pro-immigration position on a major issue.

          You literally have to be a sadistic jerk to want to deport someone for the “immigration law violation” of being dragged across the border by one’s parents.

          I do realize there are sadistic jerks who believe exactly that in our comments threads here, but in any functioning majoritarian system, they would have been outvoted long ago.

          1. Serious question. At what age do you think a person should not qualify as “being dragged across the border” and bearing moral culpability for his or her own actions?

          2. I would like you to give some actual poll numbers rather than “I think”. While DACA itself has about 70% public support according to PEW, you ask the same public and 80% want an immigration moratorium, and 50% want more enforcement of our immigration laws.

            You literally have to be a sadistic jerk to think that just because someone’s parents committed a crime the kids get avoid all consequence. If I’m a new mom with a baby at home, can I avoid prison for check fraud?

            I do realize that there are sadistic jerks who believe exactly that in our comment threads here, but in any functioning majoritarian system, the rule of law should matter.

            (side note, the “land mines on the southern border” comments are clearly trolling)

            1. I haven’t posted that, but I believe it, and I’m not trolling. We should line the border with Claymores. If a few muchachos in Guatemala get wind that their cucaracha cousins are getting their legs blown off, they’ll reconsider their “journey.”

            2. “I would like you to give some actual poll numbers rather than “I think”. While DACA itself has about 70% public support according to PEW, you ask the same public and 80% want an immigration moratorium”

              An “immigration moratorium” has nothing to do with DACA. Dreamers are already here. I have never claimed that the American public supports expanded immigration. I simply said they support legalizing the Dreamers.

              “You literally have to be a sadistic jerk to think that just because someone’s parents committed a crime the kids get avoid all consequence.”

              I think there are texts going back a couple of millennia on the issue of suffering the sins of the fathers on the children. I basically think I’m arguing with a Nazi or Stalin at this point. You are endorsing sadistically punishing innocent people to achieve your political ends.

              1. Don’t trot out the Christian card, because you care fuck all for the rest of it, because if you did, you would acknowledge that under Christian doctrine a legitimate government has a right to control its borders, even as they welcome the stranger.

                Again, *you* literally have to be a sadistic jerk to think that just because there is a child, a parent doesn’t take responsibility for their actions. I guess once the child is out of the womb that is.

  15. I hope Roberts gets a tumor

    1. I can’t speak for Roberts, but I think he would agree with me that you should live a very long life and should use that time to become a better person.

      1. Well said.

    2. And I hope you live to be 110 in good health so you can watch your dream of a white supremacist utopia disappear completely. Also that all of your grandchildren will turn out to be gay, and half of them will partner with blacks and Hispanics.

  16. When was the most recent case that SCOTUS used the “arbitrary and capricious.” standard in an opinion.

  17. Thank you for supplying the perspective and proper legal effect of this decision, which have apparently been lost upon the majority of the MSM, Professor Somin.

  18. This is a very narrow decision only if one concludes that the rationale given for the decision was, in fact, the real reason for the decision and not just a pretext. If one thinks it was a pretext, the decision was broad because it tells the President and others that no matter what new justifications they provide, the Court will continually rule against them.

    1. What evidence do you have that the reasoning of this decision is all lies?

  19. Sorry – this is not narrow, this is nonsense.

    SCOTUS MUST addess the claim that DACA was illegal or unconstitutional FIRST.

    I honestly do not see how APA can possibly apply to an action justified by prosecutorial discretion.

    Regardless, the claim that anyone must provide a rationale beyond “its illegal” to undo something.

    Roberts is essentially saying that illegal and unconstitutional acts must remain forever – if someone thinks they are a good idea.

    1. I agree, and what happens if injury occurs in the interim?

  20. I thought post-hoc rationalizations were beloved by the court, and the core behind the “rational basis” test. And not even post-hoc rationalizations by the advocates, but post-advocate post-hoc rationalizations by the court.

    I mean, if concern by The People that bureaucrats aren’t just pulling stuff out of their behinds is a value, which this judgement apparently claims.

    1. Someone will now reply something it was found hiding in the Constitution, and was not actually post-hoc, like the trick the New Testament uses, John 1:1 In the beginning was the Word, and the Word was with God, and the Word was God.

      Thus does a religion born 1500 years after another claim to have, gosh, actually been there all along, you just missed it!

  21. Reason used to be against the Executive Branch writing legislation via Executive Orders. It appears now that they are now as hypocritical as everyone else. As long as they like the order, it’s as good as gold to them.

    1. …Do you think Reason is a hivemind?

    2. Agree. Sad really. How’s that for free speech Nicky?

      1. More like they don’t like the strike zone changing every half-inning, never in their favor. Congress has been pretty worthless at passing legislation that doesn’t give everyone money. If the Executive (and Judicial) branches are now the sources of law then they at least want their turn, fair is fair.

  22. Rescinding DACA may have been bad policy. But what is sauce for the goose has to be sauce for the gander.

    If enacting the program did not require notice and comment, then it can be rescinded without notice and comment.

    And if the rescinding a validly enacted program required notice and comment, then enacting it required notice and comment, and enacting it without that was unlawful.

    The requirements to enact and to rescind have to be the same. There has to be the same law for policies the Justices like and policies they don’t.

    Moreover, the basis for rescinding a forebearance program is clear. The law says deportation, not forebearance. Every President has a right to take care that the laws be faithfully executed.

    1. It’s not clear that enacting the program did not require N&C. That is , I believe, still in litigation.

  23. “The majority opinion also concludes that the administration failed to properly consider the “reliance interests” of DACA recipients, in making its rescission decision.”

    Completely different than, say, telling gun owners for years that bump stocks are perfectly legal, then doing a 180° and making them felons unless they turn them in for absolutely no compensation.

  24. DACA is most likely unconstitutional and was declared as such by one of the higher courts. The SC ruled that Trump did not overturn in a proper manner.

    So executive overreach was allowed to stand over a technicality. I think Thomas’ dissent summed up this little sordid affair perfectly.

    The only reason libertarians aren’t getting cancelled left and right is because their whole movement was insignificant for the new Jacobins to care. I do fear for Robby Soave though.

  25. One of my difficulties here is that if you look at the Trump Administration’s overall behavior, it essentially used DACA recipients as political hostages, first dangling sympathy for them, then offering to make their status permanent if President Trump got his way on enough other issues, and finally coming down hard on them when the demanded ransom wasn’t paid.

    That angered me. It doubtless angered Professor Somin. And I suspect it angered Chief Justice Roberts. I also suspect this behavior, while not the on-the-record reason, was the real reason why Chief Justice Roberts voted the way he did.

    I also acknowledge the anger was likely moral, at the idea of treating people’s lives as pure hostages for ones political advantage, of having complete disregard for them. The sadistic pretense of sympathy, as a way to manipulate for a higher ransom, combined with a complete lack of caring about the actual policy merits – he would have gone the other way if the ransom had been high enough – is what makes this situation far more immoral than for a person who genuinely believes deportation and strict enforcement is correct policy.

    If the opinion had said that, I might, on reflection, be inclined to give the opinion more credit than I did when it came out. After all, if the APA applies, one basic element of it is that administrative policies cannot be based purely on political ransom demands, they have to flow from the statutory mandate in a reasoned way.

    I still don’t think the APA applies. Because it was enacted without notice and comment, it can be rescinded without notice and comment. If N&A was initially required, the initial policy was illegal and could be rescinded Immediately. And if not, recission was also discretionary. In any event relying on the opinion of a circuit court of appeals was reasonable.

Please to post comments