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US Supreme Court Ruling On DACA Program Explained

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The Supreme Court didn't say Trump can't end the program, just that his administration went about it the wrong way. Now, his administration will have to decide whether to keep it or dismantle it another way.

Speaker 1: 00:01 In a stunning rebuke of the Trump administration. The Supreme court led by chief justice, John Roberts, upheld DACA. The Obama era protections for immigrants brought to the U S illegally as children deferred action for childhood arrivals shield some 650,000 residents from deportation and allows them to work. We start our extended discussion today with Dan Eaton, a constitutional law expert and partner at the San Diego firm of seltzer Caplan McMahon Invitech. Welcome Dan.

Speaker 2: 00:32 Thank you. Good to be with you

Speaker 1: 00:33 now, Dan, start with the ruling itself. Another five, four decision. How surprising was this?

Speaker 2: 00:39 Well, it was surprising to the extent that you had chief justice joining the four, uh, liberal, uh, members of the Corps. And essentially saying that the Trump administration's attempt to rescind DACA was done the wrong way. There was really no dispute. All nine members of the court agreed that the department of Homeland security and therefore the Trump administration had the authority, uh, to rescind DACA. Uh, what the court said was that they did it the wrong way, uh, for the purposes of the administrative procedure act.

Speaker 1: 01:13 And, uh, where did the justices line up? Uh, we've, we've heard so much of course, that this is a very conservative court, but, uh, as we've seen this week, there are some surprises to be had.

Speaker 2: 01:24 Well, uh, there was a surprise because, uh, chief justice Roberts ended up being the swing vote, which was what was expected when, uh, justice Anthony Kennedy retired. So you had, what is becoming a conventional surprising lineup where you had chief justice Roberts and the four liberals aligned against the four generally considered more conservative members of the court, including Trump's two appointees, uh, Gorsuch and Kavanaugh.

Speaker 1: 01:52 And again, I mean, we can call it a technicality or call it what you will, but it really was a procedural requirement here. Wasn't getting into the whole meat of the thing.

Speaker 2: 02:01 Well, except it is important because, uh, the procedures matter when you were talking about administrative rules and what, uh, basically, uh, the court said, uh, in a nutshell, is that then acting secretary, uh, Dukes should have considered the possibility of rescinding, just the extension of benefits to DACA recipients, even while preserving the aspect of DACA, uh, that results in forbearance, from removal from this country or deportation, the court said she should've considered that option. And didn't, and that made what she did arbitrary and capricious. Indeed forbearance is at the very heart of, uh, a program that is after all called deferred action for highly hood arrivals. And therefore that was something that, uh, the acting should have taken into account in rescinding DACA. And didn't, she focused on, she has said it was rescinded because the extension of benefits, namely social security, Medicare, and work authorization of benefits, uh, were, uh, improper. So she was going to rescind it on that basis. She also said, look, the secretary of the court also said the secretary should have considered, uh, the, uh, hardship on the DACA recipients. The fact that DACA recipients, after all had started careers, started businesses married and even had children. And that auto have been taken into account in deciding whether to rescind this program and offering the justification for rescinding it.

Speaker 1: 03:42 The liberal wing of the court did not agree with one aspect of chief John Roberts, his opinion, what was that?

Speaker 2: 03:49 That's not quite right. Actually eight members of the court actually agreed with, uh, chief justice Roberts, uh, decision to reject, uh, the challenge to the rescission of DACA based on equal protection grounds, namely that it disproportionately affected Latinos justice, Sonia Sotomayor, a Barack Obama appointee. I was alone in saying she would have allowed the equal protection challenge, uh, to continue at this very preliminary stage of the litigation, but, uh, understand that, uh, chief justice Roberts, uh, did have eight of the course, including his fork, a conservative president, joining him in saying that the equal protection challenge had no merit.

Speaker 1: 04:33 And now let's do a step back question here. It wasn't a decision on the merits of, of DACA, as we've said, are you surprised Roberts is again, siding with the liberal wing, um, because it seems like the makeup of the court and so much that's been written about, uh, Donald Trump's appointees here, uh, might be, uh, not what people thought.

Speaker 2: 04:54 Well, there are a couple of things first, as you'll see often in, uh, papers. The answer to your question is no, I'm not completely surprised because remember that roughly, uh, although with different players, of course, roughly the same lineup was in play when the court upheld the affordable care act. Also with chief justice, John Roberts writing, uh, the opinion, uh, understand that you'll read a lot about chief justice Roberts as the chief justice being an institutionalist and being concerned about the perception of the court as a political institution. Uh, so you do see him from time to time, uh, siding with the liberals, even when the four conservative, uh, uh, more conservative justices and chief justice Roberts is certainly conservative, uh, say no, uh, the, uh, liberal policy, if you want to call it that overreaches.

Speaker 1: 05:44 And where does today's decision leave? The 650,000 or so dreamers, the recipients of protections under the DACA program.

Speaker 2: 05:52 That's the fascinating thing about it. What happened with this ruling is that, uh, the court, uh, punted it and sent it back to the department of Homeland security to try again, uh, potentially if they want to rescind DACA. Uh, so there is a potential that the department of Homeland security could again, try again and issue a rescission order, but you can expect that it would be subject to court challenge. And this is one of the points that the dissent made, particularly, uh, Alito, who said, look, what we have here is a situation where, uh, one administration imposes an, uh, a policy, uh, through, uh, one of its, uh, agencies. And then it takes a full term of a, the succeeding administration to try to undo it subject to litigation. Then it's just set back for further review. Bottom line is the dogger program is not necessarily out of harm's way from being rescinded, particularly, presumably uh, if, uh, this precedent gets reelected

Speaker 1: 06:53 justice, Clarence Thomas wrote the lead descent for justices Samuel Alito, jr. And Neil Gorsuch. What did Thomas say in his dissent?

Speaker 2: 07:02 What he said was that DACA was, uh, illegal. It was an overreach. It wasn't a done according to, uh, the, uh, procedures in the administrative procedure act. And it went beyond the authority of the immigration and nationality act. Congress did not extend it. The department of Homeland security, the discretion to exclude from removal, a whole class of identified potentially removable people. It was an overreach. He said of the June, 2012, uh, DACA memorandum. And that should have ended the discussion, but with respect to the, uh, compliance with the administrative, uh, administrative procedure act justice, Thomas said, look, the explanation that was offered by both a acting secretary, Duke and her successor, secretary Nielsen were sufficient. We can't go around, uh, piecing and taking apart of the justifications for the purposes of trying to invalidate a validly issued, uh, administrative rescission, particularly when the rescission occurred, when the same procedure as the original DACA program, he said that doesn't make sense

Speaker 1: 08:13 and justice Brett Kavanaugh wrote his own dissent. Of course, that we should note Kavanaugh is of course, a Trump appointee. How was his opinion different from the other three conservative justices?

Speaker 2: 08:24 Well, justice Cavenaugh simply reinforced the idea that greater deference should have been paid to the, uh, rationale that the, uh, two, uh, secretaries gave for deciding to resend. Uh, he did not agree with the court majority, that this is the kind of thing that ought to be second guessed in the name of calling the rescission arbitrary and capricious.

Speaker 1: 08:48 And if the chief justice had agreed with Thomas and the dissenters and DACA had been decided on whether relief for the dreamers must come from the legislative branch, not the courts, how might this decision have gone?

Speaker 2: 09:00 Well, the decision would have ended DACA, and that would have put the dreamers in immediate peril of a deportation, but the end of the day, the basic difference between the two sides, the majority and the descent was, uh, was whether, uh, the procedures that were used to end DACA were, uh, sufficiently justified to allow it to be ended when it did. There was no dispute about the fact that it could be ended, but the descent any way thought that, that if you were going to implement a policy like DACA, it ought to be done through the legislative branch. It didn't belong in, uh, and having the executive branch implement DACA. And certainly it said the judicial branch should not be in the business of overturning a, uh, justified recision of an administrative decision to implement DACA in the first place.

Speaker 1: 10:03 And what about justice Thomas comment or illusion that chief justice Roberts was kind of keeping an eye on the politics and all that's gone on in the streets here or recently inciting with the liberal judges? What do you make of that?

Speaker 2: 10:17 Well, I, I mean, that is one of the arguments fat will be made that in effect that the court was moved by recent events, in some ways the chief of the justice, Benjamin Cardozo once said that the, uh, great tides and currents that in golf, the rest of men do not turn aside in their course and pass the judges by, uh, it, uh, chief justice Roberts, in his opinion, any way doesn't show any sign that that was driving his opinion in any way, but it is not surprising to see that in an interesting additional point about justice Roberts, uh, dissent is that he warned of that, what this does, what the majority opinion does is it gives an unusual incentive to do party administrations, to issue rules, that it will be very, very hard for their successors to undo. If the justification for rescinding is not viewed as sufficient from the point of view of five members of the United States Supreme court.

Speaker 1: 11:17 And where does this issue go from here on the legal front, at least

Speaker 2: 11:21 on the legal front. It goes back to the department of Homeland security, but it's very hard to see how the department of Homeland security is going to be able, uh, to, uh, get a rescission of DACA and go through all of the judicial steps before the next presidential election and before the next president, or if this president continues, uh, before the next presidential Mark operation in January of 2021, it continues,

Speaker 1: 11:49 right? So even if the Trump administration acts swiftly offer more reasons in order the DACA program ended again, you don't see this playing out before the November election. I mean, there would be lawsuits again, I imagine

Speaker 2: 12:03 exactly just as swiftly as the Trump administration were to act to, uh, rescind again, the DACA program, you could see that the people that challenged that rescission would be in court and court actions are not going to be done in the space of a few months, certainly not court actions that result in Supreme court action. Remember some of the lower court rulings here, uh, took place as long ago as 2018, docket itself dates back eight years. In fact, to this month, June of 2012. So this is a long process. Litigation is designed to be long, and that's why at least some of the members of the court said, this is a fight between the political branches that doesn't belong in the judicial branch.

Speaker 1: 12:51 I've been speaking with Dan Eaton, a constitutional law expert here in town. Thank you very much, Dan, for joining us. Good to be with you.

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