The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
SCOTUSBlog is hosting an online symposium on the Supreme Court's decision invaliding the Trump Administration's attempt to rescind the Obama Administration's Deferred Action for Childhood Arrivals (DACA) policy in Dept. of Homeland Security v. Regents of the University of California.
In that symposium, I found the contribution by Professor Zach Price of the University of California at Hastings Law School to be particularly worthwhile. His piece begins:
In its decision in Department of Homeland Security v. Regents of the University of California barring repeal of the Deferred Action for Childhood Arrivals program, known as DACA, the Supreme Court reached an attractive result through flawed legal reasoning. The decision may carry implications that progressives will regret, but it is hard to tell because Chief Justice John Roberts' opinion seems deliberately designed for one day and case only.
Later on, Professor Price writes:
When one dives into the details, the majority's reasoning becomes so narrow and self-contradictory as to preclude confident generalization beyond the example at hand. The court expressly declined to consider DACA's legality—yet faulted the secretary for failing to consider options she believed were unlawful. It held that the secretary was bound by the attorney general's legal conclusions—yet faulted her for failing to independently parse the reasoning in a court decision. It emphasized the importance of considering reliance interests—yet never addressed the troubling incentives that protecting reliance could create for the executive. Overall, the court repeatedly emphasized the particular features of the government's shambolic rescission process and parsed the particular words of DHS' explanation, seemingly advertising the decision's narrow, fact-specific character.
Given all this muddled narrowness, it is hard to escape the conclusion that the court, whether self-consciously or not, took advantage of the Trump administration's characteristically erratic decision-making process to benefit sympathetic immigrants and freeze in place a policy the court knows to be both quite popular and quite polarizing. In effect, it reached a result that Congress should have reached on its own—but in a manner that spares Congress any need to strike compromises and disappoint some constituents to please others.
My own prior analysis of the decision is here.