Carrie Severino: Supreme Court on DACA – this double standard weaponizes the judiciary

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Chief Justice John Roberts strikes again.

In a 5–4 judgment in Department of Homeland Security v. Regents of the University of California, the Supreme Court held that the Trump administration’s rollback of the Obama administration’s Deferred Action for Childhood Arrivals (DACA) program is arbitrary and capricious under the Administrative Procedure Act (APA), the statute that sets the standard of review for federal agency action.

Put aside for a moment the dubious notion that the APA even governs this case. If something seems fishy about why a court would block an incumbent administration’s executive action on immigration that simply rescinds similar action on the same issue by a prior administration, you’re on to what is in fact a brazen double standard.

STEVE LEVY: DACA DECISION – SUPREME COURT'S BLOW TO COMMON SENSE AND THE RULE OF LAW

Recall that President Obama had implemented DACA by executive action, disregarding the law governing hundreds of thousands of people who are in this country illegally in an attempt to go around Congress after it failed to pass the legislation he wanted.

By implementing DACA, Obama had flip-flopped from his past statement that he could not go around Congress: “I’m not the emperor of the United States. My job is to execute laws that are passed, and Congress right now has not changed what I consider to be a broken immigration system.”

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In fact, this story involves two flip-flops, neither of them by the Trump administration.

In addition to DACA, the Obama administration had implemented a very similar program that applied to illegally present parents whose children are here legally, known as Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA).

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That was struck down as unlawful by the Fifth Circuit in a decision that, once it was appealed to the Supreme Court in 2016, was affirmed by an equally divided 4–4 court, Justice Antonin Scalia having recently died. Roberts was one of the four who recognized DAPA’s unlawfulness and therefore voted to affirm the Fifth Circuit.

Yet today, Roberts wrote the court’s opinion, joined by the four members of the liberal bloc, going in the opposite direction.

DAPA’s legal infirmities are indistinguishable from DACA’s. It should have been straightforward that the Trump administration had the discretion to take executive action to undo executive action that was unlawful from the start.

So what changed between then and now?

As the dissenters explain, the courts conspired to block a duly elected president’s agenda through delay, requiring layers of extra procedure to draw the process out for years. 

Of course, what changed is the identity of the occupant of the White House. The court has demonstrated that it is willing to change its standard of review of executive action when the president is named Trump.

As the dissenters — Justices Clarence Thomas, Samuel Alito, Neil Gorsuch and Brett Kavanaugh — explain, the courts conspired to block a duly elected president’s agenda through delay, requiring layers of extra procedure to draw the process out for years.

Roberts’ decision validated these tactics, conveniently dodging a ruling on the ultimate merits of DACA while scuttling its rescission with a remand to the Department of Homeland Security.

That translates into the inability of a president to implement a straightforward policy over his entire first term. And the court got away with this because, as Thomas wrote in dissent, the majority “forsakes the court’s duty to apply the law according to neutral principles.”

And this sadly is nothing new. It is taken from Roberts’ playbook in Department of Commerce v. New York (the census case) just last year.

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There he took another unremarkable action by the administration — to reinstate a question about citizenship on the census — and threw away longstanding principles governing review of executive decisions to scuttle the measure by sending it back to the agency.

Once again, Chief Justice Roberts has failed to stand up for the institutional interests of the court by allowing it to be weaponized for partisan ends. Instead of avoiding a political morass, he has walked right into it.

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