Kaylee McGee “John Roberts’ DACA decision is a constitutional disaster”


By Kaylee McGee – WashingtonExaminer

The Supreme Court blocked the Trump administration’s attempt to end the Deferred Action for Childhood Arrivals program, arguing that the president did not give sufficient reason for overturning the Obama-era policy and that he attempted to circumvent administrative law in the process.

Chief Justice John Roberts, never one to rock the boat, wrote the majority opinion for the bench. His reasoning focuses almost entirely on the Trump administration’s actions in regards to DACA and ignores the substance, and thus the constitutionality, of the DACA program altogether.

“We do not decide whether DACA or its rescission are sound policies,” Roberts said. “We address only whether the agency complied with the procedural requirement that it provide a reasoned explanation for its action.”

Roberts’s reasoning is problematic for several reasons. The most important is that he’s choosing to avoid the principal question at stake: Is DACA constitutional or not?

In his dissenting opinion, Justice Clarence Thomas argued that the program, created by an executive order without “going through the requisite rule making process,” was “unlawful from its inception.” But Roberts refuses to even address this — even though it is the Supreme Court’s responsibility to determine the constitutionality of certain laws and actions.

“Today’s decision must be recognized for what it is: an effort to avoid a politically controversial but legally correct decision,” Thomas wrote. “Such timidity forsakes the Court’s duty to apply the law according to neutral principles, and the ripple effects of the majority’s error will be felt throughout our system of self-government.”

Thomas’s point is that DACA is not immune from judicial scrutiny for the same reason that it is not immune from executive action. It was created by unconstitutional means and should be treated as such.

If Roberts’s concern was legislating from the bench, he could have at least made it clear that Congress must act in a permanent manner. But he did not. Instead, he passed the question of DACA’s legality onto the Justice Department, so that it can be further bogged down by administrative back-and-forth.

Congress is ultimately responsible for the future of DACA and the program’s participants, but thanks to Roberts, the legislative branch does not have a reason to pursue further legal action. He has shielded our lawmakers from the one thing they are supposed to do: legislate.

This is the second problem with Roberts’s reasoning: He is encouraging the executive branch, not the legislature, to make the laws. By focusing on procedure rather than substance, Roberts has essentially created a new, impossible-to-reach standard by which past executive orders can be undone — a standard that requires current presidents to jump through hoops and follow rules that did not apply to past presidents. As Thomas notes, this creates “perverse incentives, particularly for outgoing administrations” that can now “bind their successors” through unlawful executive action.

“In other words, the majority erroneously holds that the agency is not only permitted, but required, to continue administering unlawful programs that it inherited from a previous administration,” Thomas wrote.

Read more here.