For the second time this week, the Supreme Court defied expectations by ruling against the Trump administration in one of the most important cases of the year: this time, preserving the Deferred Action for Childhood Arrivals (DACA) program.
Repealing DACA, which protects people who were children when they were brought to the United States in violation of U.S. immigration laws, was one of the signature positions of Donald Trump’s 2016 presidential campaign.
It has now failed.
As a result, over 700,000 people who rely on DACA to be able to live in the United States are safe.
Notably, like Monday’s decision that discrimination against LGBTQ people constitutes sex discrimination under Title VII of the Civil Rights Act, the decision was written not by one of the Court’s four liberal justices, but by a conservative–this time, Chief Justice John Roberts. (Monday’s decision was by Justice Neil Gorsuch, a Trump appointee.)
Chief Justice Roberts found that the Trump administration’s repeal of DACA violated the Administrative Procedure Act (APA) by failing to take into account the interests of those 700,000 people.
That core holding of the case, Department of Homeland Security v. Regents of the University of California et al., was joined by the Court’s four liberals, making it a 5-4 decision. (A secondary holding in Chief Justice Roberts’ opinion, that the DACA rescission did not violate the Constitution, was also joined by the Court’s conservatives.)
In legalese, the opinion says that the Secretary of the Department of Homeland Security “should have considered whether she had… flexibility in addressing any reliance interests of DACA recipients.”
What that means is that the Trump administration simply overruled DACA because they believed it to be illegal, but it didn’t consider the hundreds of thousands of people who applied for the program, shared their personal information with the government, and have gone about their lives for the last eight years.
Chief Justice Roberts continued:
Had [Acting DHS Secretary Elaine] Duke considered reliance interests, she might, for example, have considered a broader renewal period based on the need for DACA recipients to reorder their affairs. Alternatively, Duke might have considered more accommodating termination dates for recipients caught in the middle of a time-bounded commitment, to allow them to, say, graduate from their course of study, complete their military service, or finish a medical treatment regimen. Or she might have instructed immigration officials to give salient weight to any reliance interests engendered by DACA when exercising individualized enforcement discretion.
But because she did none of these things, the government’s decision was “arbitrary and capricious” under the APA.
Moreover, as Chief Justice Roberts noted, the government kept changing its story as to why DACA must be repealed. At first it was because DACA was illegal, then it was because DACA rewarded illegal immigration, then it was because DACA was never a formal decision in the first place so the Court shouldn’t review its repeal.
Ironically, just as the government went to court to defend these multiple rationales, President Trump tweeted that “President Obama… had no legal right to sign” it, thus undercutting his own lawyers’ arguments.
(Along the way, the government also tried to leap-frog over the usual process of judicial review, asking that the Court take this case back in 2018. That failed as well.)
Just after the decision was issued, Trump tweeted that “These horrible & politically charged decisions coming out of the Supreme Court are shotgun blasts into the face of people that are proud to call themselves Republicans or Conservatives.”
In dissent, Justice Clarence Thomas–joined by Justices Samuel Alito and Gorsuch–agreed with the government’s position that DACA was illegal from the start, and said that, as a result, none of the “reliance interests” that Chief Justice Roberts discussed were relevant. The program is illegal, and so it doesn’t matter whose lives it affects.
(Justice Brett Kavanaugh, meanwhile, wrote a separate dissent saying that the government’s subsequent rationales should have been considered, and that they, rather than the core illegality argument, do take enough factors into account.)
It bears noting that the Court did not rule on DACA itself–only on the flawed process of repealing it. If President Trump is reelected, this issue will come back, and the administration will surely provide all the kinds of rationales and explanations that it failed to do the first time. DACA is not necessarily here to stay.
But in practice, that process will not happen before the election.
That, of course, is the most significant result of this landmark case: that 700,000 “Dreamers” will not be deported, and that another of Trump’s signature initiatives has been defeated. Already, celebrations have broken out among immigration activists.
But the case is extremely significant in other ways as well.
First, this is yet another time that Chief Justice Roberts–who, you may recall, recently presided at Trump’s impeachment trial–has called out the Trump administration for its lack of adequate legal procedure. A year ago, the Court overruled Trump’s efforts to add a question about citizenship to the U.S. Census–again, not because the question was itself illegal or unconstitutional, but because the process by which it was added was a sham, riddled with misrepresentations and fake rationales.
Second, while conservatives may cry foul over this latest decision, the Court is still ideologically conservative. A major abortion case is expected within the next two weeks, and at oral argument, it appeared that the Court may depart from its own precedent to further restrict abortion rights. The Court has declined, multiple times, to protect voting rights. It allowed construction of Trump’s border wall to proceed while its legality is fought in court. It recently allowed a giant cross (or “cross-shaped monument”) to stand on public land, and seems poised to compel governments to fund private religious schools if they fund private secular schools.
In other words, the DACA case is not about Chief Justice Roberts turning liberal. It is about the Supreme Court insisting that the Trump administration respect the rule of law. Like Justice Gorsuch in the transgender case, Chief Justice Roberts is judicially conservative, even if that leads to a substantively liberal result.
This has not always been the case. In 2018, Chief Justice Roberts authored a controversial opinion upholding Trump’s ‘Travel Ban,’ holding that the administration’s eventual rationales for it supplanted Candidate Trump’s incendiary statements about a ban on Muslims.
But it was the case today. Rescind DACA if you want, the Court’s opinion says, but do it according to the law and thus taking into account the lives of 700,000 people who depend on it. Because that’s how things work in a democracy.