Turns out that Duke, who features prominently in Roberts’s opinion, may be the unsung hero of his DACA ruling. As the New York Times’ Michael D. Shear and Julie Hirschfeld Davis tell the story in Border Wars: Inside Trump’s Assault on Immigration, Duke put up a big fight before issuing the DHS memorandum that purported to end DACA. Unlike Sessions and Stephen Miller, two central immigration hardliners in the Trump administration, she did not want to sign her name to the anti-immigrant policy views. And so she didn’t. She just stuck to a simplistic statement that DACA was unlawful—without taking into account the burdens that ending the program would place not only on DACA recipients, but on the economy, civil society, and others who depended on the program’s survival. And so lower courts concluded that the absence of reasoned policy explanations for scuttling the program deemed its rescission void—“arbitrary” and “capricious,” in the language of the law.
Roberts echoed that sentiment on Thursday. He didn’t deny that DHS, or Trump more broadly, doesn’t have leeway to offer “policy choices” for scrapping DACA. But the administration must own up to its decision and offer something. “Agencies are not compelled to explore ‘every alternative device and thought conceivable by the mind of man,’” Roberts writes. But as he alluded in the passage where he brings up Holmes and Black, one tenet of administrative law is that public accountability demands more than mere shoddiness. “The basic rule here is clear: An agency must defend its actions based on the reasons it gave when it acted,” Roberts wrote. “This is not the case for cutting corners to allow DHS to rely upon reasons absent from its original decision.”
Three of the Supreme Court’s more conservative members—justices Clarence Thomas, Samuel Alito, and Brett Kavanaugh—wrote separate dissents to lament Roberts’s majority opinion. Alito’s, which only spans one page, may be the most pained of the three, suggesting that the courts have effectively prevented the president from moving forward with political cruelty that Trump himself seemed unwilling to own. “What this means,” Alito writes, “is that the Federal Judiciary, without holding that DACA cannot be rescinded, has prevented that from occurring during an entire Presidential term. Our constitutional system is not supposed to work that way.” Thomas, for his part, pushed the view, largely favored by the Millers within the administration, that DACA was unlawful at its inception—and that a simple declaration of its illegality was all that was needed to then get rid of it, root and branch. No need to wind down anything, let alone offer a soft landing to those who may suffer the fallout.
For those justices in the minority and other conservatives who may be reeling from the DACA ruling—or else the LGBTQ rights decision that Justice Neil Gorsuch heralded earlier in the week—weeping and gnashing of teeth won’t get them very far. If their belief is that only Congress can fix a plight that affects millions, then they should be quick to embrace a bill that has been gathering dust since the House passed it last year. For those who fear that the courts, and the Supreme Court, may be usurping authority that belongs to the political branches, there’s no better remedy than solutions that come from those branches themselves.
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