Different Strokes for Different Folks

Today, in a 5-4 decision, the Supreme Court ruled that the decision of DHS to rescind DACA was arbitrary and capricious under the Administrative Procedures Act.  Basically, the majority opinion finds that the DHS reason given for recission was not sufficient.  That reason was that, based upon opinions of the 5^th Circuit and the Attorney General, DACA implemented by the prior administration’s DHS was unlawful.  Those opinions explain that Obama’s DHS overstepped its authority by conferring benefits that were in excess and violation of the Immigration and Nationality Act.  

There are essentially 2 parts to DACA – the authorization of benefits to illegals covered under DACA and the Obama DHS decision to at least temporarily not enforce immigration laws as to this group of illegal aliens.  Apparently because the Trump DHS does not address these two parts separately, but instead conflates them together in the reasoning for rescission, the majority finds the decision to rescind the original illegal DACA to be arbitrary and capricious and hence insufficient.  It is, then, insufficient to justify the rescinding of a law on the fact that the law is an illegal exercise by the Obama DHS.

So, as Justice Thomas notes in his dissent, under this decision future administrations can bind their successors “by unlawfully adopting significant legal changes through Executive Branch agency memoranda.” The agency, in this case DHS, must continue to administer an unlawful program from a previous administration.  One administration gets to exceed the law, the second is not allowed to correct that excess.

Two DHS memos.  One creates DACA, essentially amending and altering current law and in contravention of INA and beyond any powers granted to DHS, and thereby provides benefits and stops deportations of a group of illegal aliens.  The second DHS memo rescinds the first based on the fact that the first unlawfully creates benefits and contradicts existing law.  Two memos, both by DHS, one from the Obama administration, the other from the Trump administration.  The first which has been found to be illegal stands, the second is found unlawful. 

It feels like we have entered Alice’s rabbit hole, or perhaps more accurately are living out Orwell’s 1984 – up is down, right is wrong, and 2 + 2 = 5. 

Chief Justice Roberts, in writing the majority opinion, also expresses his concern for the “reliance rights” of DACA individuals.  It seems that in his view the Trump DHS should have considered these reliance interests and held off or delayed the recission or at least instructed immigration agents to “give salient weight to any reliance interest engendered by DACA when exercising individualized enforcement discretion.”  Well, that is simply another way of saying keep the illegal law in place. 

The majority opinion states that “The dissent is correct that DACA was rescinded because of the Attorney General’s illegality determination.”  But, while that determination did not address the option of retaining forbearance or accommodating other reliance interests, the DHS “should have considered those matters but did not.  That failure was arbitrary and capricious in violation of the ADA.”

Justice Thomas, in his dissent, states “Today’s decision must be recognized for what it is: an effort to avoid a politically controversial but legally correct decision.”  Exactly!  Chief Justice Roberts and the majority are allowing their own emotions and the emotions of the vocal pro-DACA demonstrators to color their thinking. 

It is easy to have sympathy if not empathy for children taken at a young age to another country who then discover they are there illegally and essentially have no country to call their home, face the possibility of deportation to a land they don’t even know.  That is a problem.  And that problem is addressed (or not) by our legislative branch. 

The Obama DHS did not have the authority to essentially create new rules to address that problem.  Obama himself admitted that the action was done through DHS because he knew that Congress would not enact it as law.  DACA is illegal.  Its recission will cause heartache.  But its rescission is legally the right thing to do.

In this opinion the Court is essentially making law or perhaps even endorsing illegal law when it is emotionally compelling.   That is not the Court’s role.  That role also does not belong to DHS.  It belongs to the Legislature. 

We expect the Court to be dispassionate and logically look at the law.  But here we have a decision that seems in large part to be based on emotion, on what the court thinks is the right thing to do or what it would do if it had the authority to make law.   When the court so clearly and openly loses its way, America as we know it is in big trouble.

There are many court decisions as well as many laws with which I do not agree.  I used to say “be patient, the system will work” meaning that if the Court went beyond its authority the legislature would hold it in check by amending or writing legislation.  And if the legislature or administrative agencies exceeded their power, the court would hold them in check. 

But, if the Supreme Court cannot follow the rules, if it puts emotion, popular sentiment (mob rule), and politics in the place of dispassionate deliberation, then we no longer have a system to follow or to trust. 

I want to note here that this opinion, with majority, concurring, and dissenting opinions, is 79 pages long.  I obviously cannot do it full justice in this short blog, and I would encourage everyone to read it in its entirety and form their own opinions about it.  But that reading should be done objectively and dispassionately. 

Even if you agree with the outcome, if your heart is with the DACA group, that outcome can and should be achieved through the appropriate processes and not by playing legal mumbo-jumbo games to enforce what should be an illegal action by a government agency.  Allow that once, and you are justifying it again when you may not be so happy with the result.