DACA Decision Shows the Constitution Has Failed

An executive order signed by one president can be undone by another. This seems obvious. However, the “conservative” Supreme Court ruled 5-4 that President Donald Trump could not repeal Barack Obama’s Deferred Action for Childhood Arrivals (DACA) policy. Chief Justice John Roberts joined the liberal bloc. This remarkable decision implied that DACA was illegal but must be kept in place anyway.

Why? The Court believes the Administration didn’t follow the correct process to remove the order. This process was necessary because the DACA program wasn’t just non-enforcement, but a new government program created unilaterally by the Obama Administration. The Supreme Court saved DACA by destroying DACA’s legal foundation.

“The dispute before the Court is not whether DHS may rescind DACA,” Chief Justice Roberts wrote. “All parties agree that it may.”[1] However, the Court found that the Obama Administration had “created a program for conferring affirmative immigration relief” and access to benefits for illegal aliens.[2] This meant that any attempt to remove this program fell under the Administrative Procedure Act (APA). Acting Secretary of Homeland Security Elaine Duke “violated” the act by “failing to adequately address important factors bearing on her decision [to end the program].”[3]

Specifically, the Administration did not consider whether it could have prevented illegal aliens from obtaining federal benefits while still not deporting them. DHS also did not give enough consideration to what would happen to DACA recipients if DACA were removed. “Duke might have considered more accommodating termination dates for recipients caught in the middle of a time-bounded commitment,” Roberts mused, “to allow them to, say, graduate from their course of study, complete their military service, or finish a medical treatment regimen.”[4] These “reliance interests” must be considered before an administrative body can make a decision. While the Court graciously conceded that the Administration didn’t need to entertain literally every possibility, DHS “was required to assess whether there were reliance interests, determine whether they were significant, and weigh any such interests against competing policy concerns.”[5]

The majority recognized that the four dissenters thought the entire case was nonsense because “DACA is illegal, and so any actions under DACA are themselves illegal.”[6] However, the majority asserted that Acting Secretary Duke should have “considered those matters [reliance interests] but did not,” and so scrapping DACA was “arbitrary and capricious [and] in violation of the APA [Administrative Procedure Act].” Thus, if a president creates a new program that gives non-citizens new benefits, another president is not allowed to get rid of it unless he adequately explains the reasons why to the Supreme Court.

Justice Sonia Sotomayor concurred with the majority on the main decision but dissented in part. She went even farther. She argued that President Trump didn’t have the authority to remove DACA because he said mean things during his campaign about Mexicans. “[T]he impact of the policy decision must be viewed in the context of the President’s public statements on and off the campaign trail,” she wrote.[7] Though she doesn’t cite it, Justice Sotomayor echoes critical race theory when she says that “context” must be considered, not just what the law says. “I would not so readily dismiss the allegation that an executive decision disproportionately harms the same racial group that the President branded as less desirable mere months earlier,” she wrote. Simply “the strong perception” that President Trump was motivated by discrimination creates a possibility that he violated the Equal Protection Clause.[8]

Justice Clarence Thomas wrote in his dissent that the decision was “an effort to avoid a politically controversial but legally correct decision.”[9] He also said that it creates perverse incentives for presidents to “bind their successors by unlawfully adopting significant legal changes through Executive Branch memoranda.” It’s hard to disagree. In theory, why couldn’t future president Joe Biden or Kamala Harris simply declare everyone in the world an American citizen? It can’t be reversed unless some future Republican Administration (if there ever were one) writes a painstaking account explaining why they should be allowed to do so. If the Court thinks it might inconvenience these new Americans too much, it could simply ignore it.

Yesterday’s Supreme Court’s decision today was a classic example of anarcho-tyranny. No one seriously argued that President Barack Obama’s decision was legal or that he was right to usurp legislative functions. However, the Court invented a new procedure for the Trump Administration to follow, and then ruled against the President for failing to follow it. Justice Sotomayor, the “wise Latina,” didn’t just rule against the President because of what he said, which should be irrelevant anyway. She ruled against him because of what she thought he said, which was “branding” a racial group “less desirable.” President Trump never did that.

Some may argue this will fire up President Trump’s supporters because it shows the importance of the Supreme Court. President Trump is trying to make this argument now.

The recent Supreme Court decisions, not only on DACA, Sanctuary Cities, Census, and others, tell you only one thing, we need NEW JUSTICES of the Supreme Court. If the Radical Left Democrats assume power, your Second Amendment, Right to Life, Secure Borders, and…

— Donald J. Trump (@realDonaldTrump) June 18, 2020

…Religious Liberty, among many other things, are OVER and GONE!

— Donald J. Trump (@realDonaldTrump) June 18, 2020

However, the overall effect will probably be to depress his base. It was the “conservative Supreme Court majority” that Republicans fought for that returned this decision based on a nonsensical technicality.

What’s clear is that the Framers were wrong about the being the federal government’s weakest branch. In theory, its job is to enforce the rules set by the Constitution. In practice, it makes them up as it goes along.

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[1] Part I, P. 9

[2] P.3

[3] P.2

[4] P. 26

[5] Ibid.

[6] Ibid

[7] Part II, p. 3

[8] Ibid.

[9] Part III, p. 3