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.

The Judicial Branch

“All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.” U.S. Constitution, Article I, Section 1.

“The executive Power shall be vested in a President of the United States of America.” U.S. Constitution, Article II, Section 1.

“The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.” U.S. Constitution, Article III, Section 1.

The above first sentences of each of the first three articles of our Constitution lay out the separation of powers in our government.  This separation provides important safeguards for our freedom: each branch serves as a check on the others, ensuring that no one branch overshadows, usurps, or diminishes the power of the others, and in so doing ensures that the people themselves do not lose their power and their liberty.

Judicial power itself is defined by Black’s Online Legal Dictionary as, “Authority, both constitutional and legal, given to the courts and its judges (1) to preside over and render judgment on court-worthy cases; (2) to enforce or void statutes and laws when scope or constitutionality are questioned (3) to interpret statutes and laws when disputes arise.”

Judges do not make the law and to ask or expect them to do so reveals a very basic misunderstanding of our Constitution.

The court’s job is not to legislate but is to address the existing law and how it applies to specific facts before it.  Judges explain what the law is; they interpret it and uphold it, even when they personally do not like it.  Only when a specific law or action is challenged will the judicial branch become involved and its role will be to evaluate the constitutionality or legality of that law or action in light of existing law and the Constitution.  Even when emotions run high about issues involved in the case, a court ideally does not let emotion rule the day.

Our elected legislators, representing our will, make the laws.  When we are unhappy with a law our recourse is to ask our legislators to change that law or, if we are dissatisfied with our legislator’s representation then our recourse is to vote for a different representative at the next election. 

Similarly, if we are unhappy with the actions of our executive branch when acting within its legal and constitutional authority, then our recourse is, again, to go to our legislature and lobby for a change in that legal authority and/or to vote for someone else in the next election.      

What is not given its own branch of government is personal subjective emotion.  Personal feelings are certainly a guiding force for one’s own behavior.  Many people with common emotions can use those emotions as a basis for advocating changes in law or policy.  Judges, like all humans, have personal predispositions and biases.  But, we cannot let personal feelings negate the rule of law.

We expect our judiciary to set aside personal prejudices and render disinterested and unbiased opinions.  We expect the judiciary to stay above the political and often emotional turbulence of the day and instead render decisions that will logically and rationally as well as legally stand up to the test of time, even when popular or political emotions change.  We expect our judiciary to focus on the legal questions presented by a case and to decide those cases fairly. Indeed, these expectations are necessary in our system of government.

We see this concept explained by Justice Roberts in the opinion upholding the president’s travel ban.  Justice Roberts wrote: “Plaintiffs argue that this president’s words strike at fundamental standards of respect and tolerance in violation of our constitutional tradition. But the issue before us is not whether to denounce the statements. It is instead the significance of those statements in reviewing a presidential directive, neutral on its face, addressing a matter within the core of executive responsibility.” He further noted that assertions that the president’s order was a bad idea, rather than supporting a finding of its unconstitutionality, were more simply statements of disapproval of the order or of the president.  “But”, he wrote, “we cannot substitute our own assessment for the Executive’s predictive judgments on such matters.”

The point is, that just because we don’t like something does not mean that it is, nor does it make it unconstitutional.  We in this country are governed by laws, not by a judge’s or anyone else’s personal beliefs or values.  We rely on the Court to recognize this principle and to remind us of it.  It prohibits us from substituting our own personal preferences as definitive of permissible Constitutional activity. 

It is the objective reasoning of the Judiciary that, along with the other two branches, protect our freedom as it exists under our democratic form of government.  Replacing that system of government with rule by popular or personal emotions is more dangerous than any of the rhetoric from the president or from other politicians on either side of the aisle.  Allowing personal feelings to eclipse our Constitution or to silence fact, reason, or opposing views can lead to only two results: anarchy or some form of dictatorship.

This concept is especially on my mind now as the discussion begins on the replacement for the retiring Justice Kennedy.  At this point in our history, when understanding of our Constitution and the role of law seems to be waning, and when the power of personal feelings as a method of decision making and control are seemingly at an all-time high, it is more than ever important that we select a jurist who understands his or her role as a Supreme Court Justice and also one who is willing to put his or her own emotions and biases aside when making judicial decisions.

I am concerned that too many elected politicians as well as their constituents will be looking for someone whose personal views agree with their own rather than someone who will be able to put those views aside and objectively review specific cases within the existing laws and Constitution.  I am concerned that some will be looking for someone who is willing to go beyond the assigned role of the judiciary in an effort to implement personal or political agendas.

The judicial branch serves a crucial purpose as do the other two branches of government.  Let us all take the time to both understand and support those purposes and demand that our fellow citizens do the same.