(Photo by Jabin Botsford – Pool/Getty Images)
“Pay no attention to that man behind the curtain!” barked Oz the Great and Powerful. It’s an admonishment that Chief Justice John Roberts might as well have footnoted in today’s DHS v. Regents opinion. A 5-4 majority of the Supreme Court held that the lawsuits challenging the White House decision to end the Deferred Action for Childhood Arrivals (DACA) policy could go forward, plaintiffs having successfully pleaded that the administration’s reversal could amount to a violation of the Administrative Procedures Act.
But the Court also released an 8-1 opinion today, with all but Justice Sotomayor glibly dismissing the Equal Protection claims brought by the plaintiffs in these cases. Given the posture of these cases, the simple question was “is there a possibility that DACA was killed based on Trump’s animus toward the Latinx community?” To this question, the majority responded: “New phone, who Trump?”
Much like the Bostock opinion earlier this week, the positive result obscures the problematic path taken by the majority. This opinion provides concrete relief to the hundreds of thousands of people impacted by the government’s policy deferring deportations of folks who came here as children. But, as Mark Joseph Stern pointed out two years ago, this is a policy reversal that could have easily been approved if the government had handled the process correctly.
To revoke DACA, Sessions need only put forth a clear statement explaining the constitutional, statutory, and policy justifications for discontinuing the program.
Instead, the attorney general issued a garbled one-page memo with minimal analysis. First, he suggested that DACA lacked “proper statutory authority.” Yet in 2014, the Office of Legal Counsel issued an opinion finding that DACA did have this statutory authority. Trump’s OLC could have reversed this finding, but it did not, and Sessions failed to explain why he’d ignore an opinion that remains on the books. This inconsistency undercut his claim, unsupported by any meaningful reasoning, that DACA had no statutory authorization.
Today’s majority opinion is limited to chiding the administration for not dotting its “i”s. It affirms that Jeff Sessions could declare DACA illegal but held that Homeland Security officials acted arbitrarily and capriciously in then pulling the plug:
The dissent is correct that DACA was rescinded because of the Attorney General’s illegality determination. See ante, at 20. But nothing about that determination fore- closed or even addressed the options of retaining forbearance or accommodating particular reliance interests. Acting Secretary Duke should have considered those matters but did not. That failure was arbitrary and capricious in violation of the APA.
But the door remains wide open for this or a future administration to try again from scratch. Which, on the one hand, makes sense. Future administrations shouldn’t necessarily be bound by old Executive Orders. On the other hand, that’s why it would’ve been a better decision to take an extra 10 seconds to allow the current plaintiffs to pursue their discrimination claims to short-circuit another round of pretextual tripe spewing from DHS and landing us right back where we started.
Instead, we got this:
Finally, the cited statements are unilluminating. The relevant actors were most directly Acting Secretary Duke and the Attorney General. As the Batalla Vidal court acknowledged, respondents did not “identif[y] statements by [either] that would give rise to an inference of discriminatory motive.” Instead, respondents contend that President Trump made critical statements about Latinos that evince discriminatory intent. But, even as interpreted by respondents, these statements—remote in time and made in unrelated contexts—do not qualify as “contemporary statements” probative of the decision at issue.
In other words, the majority opinion boils down to “Trump may have said he wanted to do this for discriminatory reasons but plaintiffs can’t say that the cabinet officials were actually listening to Trump when they did the thing Trump told them to do.”
Justice Sotomayor was completely alone in embracing reality.
But “nothing in our precedent supports [the] blinkered approach” of disregarding any of the campaign statements as remote in time from later-enacted policies. Nor did any of the statements arise in unrelated contexts. They bear on unlawful migration from Mexico—a keystone of President Trump’s campaign and a policy priority of his administration—and, according to respondents, were an animating force behind the rescission of DACA. Taken together, “the words of the President” help to “create the strong perception” that the rescission decision was “contaminated by impermissible discriminatory animus.” This perception provides respondents with grounds to litigate their equal protection claims further.
Translated into image form, here’s Justice Sotomayor responding to the majority’s claim that they don’t understand why any statements from the President indicating a racialized motive for ending DACA would matter.
Unfortunately, this is a position that Justice Sotomayor is getting accustomed to occupying. In the above passage, she cites repeatedly to her dissent in the Muslim Ban case, another matter where the majority waved away public statements from the nation’s chief executive as locker room talk that couldn’t plausibly be connected to the actions of Trump’s direct reports. Why would a cabinet department be Trump’s responsibility? If it weren’t so tragic, the Roberts assault on the premise of the unitary executive theory would be comical.
Supreme Court opinions are unique artifacts in American governance because they come packaged with a narrative account of both their reasoning and context. Yet when the history books are written of this wild tire fire of an era, the Supreme Court reporters will read as if everything was proceeding as normal. Elie Mystal said that this opinion suggests John Roberts isn’t scared of Donald Trump anymore. I think it betrays something else. This Court may be willing to hand Trump unfavorable results, but it will go to any lengths not to shield Trump from any responsibility. It’s always some technical error from some underling and never anything Trump said or did. If one is trying to read this result as a sign that Roberts is going to stick it to Trump on his tax returns, consider how much work he put into not memorializing every racist, “Build the Wall” comment Trump’s made over the years.
As an artifact of the times, Supreme Court opinions will stand out for their insistence on living in a bizarre cloistered bubble. “Sure there are a few administrative quibbles here and there but definitely not a sustained pattern of flagrant disregard for constitutional strictures! No indeedy!”
Again, pay no attention to that man behind the curtain.
(Full opinion on the next page….)
The “Judicial Resistance” Didn’t Save DACA [Slate]
Earlier: Neil Gorsuch Lays Landmines Throughout LGBTQ Discrimination Opinion
Joe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.