Following any kind of legal reasoning, much less the application of the law by the Highest Court in the land, can be confusing for lay people.
But don’t worry! (C)M is here to help, and specifically, to break down, Dummies-style, the majority’s thinking behind this week’s 5-4 decision barring President Trump from deep-sixing Barack Obama’s Deferred Action for Childhood Arrivals (DACA) program.
DACA, of course, allowed so-called “Dreamers” – people illegally brought to America by their parents – to remain and become eligible for benefits and green cards.
1. The Court’s main ruling was that it was illegal for the Trump Administration to rescind DACA, even though it was illegal, a finding of the Attorney General the Justices did not question.
2. Why was the reversal of an illegal program itself illegal?
Because even though DACA was unlawfully established without the required notice, comment period and legal justification under legislation called the Administrative Procedures Act, the Court ruled that the Administration couldn’t rescind DACA without the required notice, comment period and legal justification under the Administrative Procedures Act.
3. Now, the Administration had insisted the Court had no right under the Administrative Procedures Act to review its decision not to enforce the illegal DACA program. But because the Administration was not not enforcing immigration law for thousands of people, as opposed to just one, its decision not to enforce DACA, an illegal non-enforcement provision, is not a non-reviewable non-enforcement decision, and therefore the Court could review it.
Still with us? Excellent!
4. So under the Administrative Procedures Act – which the majority insisted on applying even though it was not applied in unlawfully promulgating an illegal program – the agency in question must provide a sufficient legal justification. Although the Acting Secretary of Homeland Security, in her initial memorandum rescinding the illegal regulation, depended on an extensive analysis by the Attorney General (and referred to the fact that Congress had not authorized DACA), a District Court sent the rule back for further explanation of the Department’s rationale. The ultimately-confirmed Secretary, per the District Court’s instruction, provided such an explanation, including a broader discussion of the preferability of Congress enacting policy via legislation rather than having it created via illegal agency fiat – which, though it had been requested by the District Court, the Supreme Court ruled was an impermissible post hoc rationalization.
5. The majority also held that the Acting Secretary, in rescinding the rule, did not consider whether and to what extent “Dreamers” had relied on rights and benefits that the Department had no power under the law to grant, had not followed the proper procedures to grant if it had the power, and had specifically said the Dreamers could not rely on because the non-enforcement of immigration law against them could be non-enforced at any time.
See? Wasn’t that simple? Now you can be a Supreme Court Justice and conjure up completely novel laws and legal and constitutional rationales too!
Your (Conservative) Maestro has been around for a really long time orchestrating messaging and communications strategy for politicians, CEOs and other assorted types. He thinks he may have picked up a few things along the way.