On Daca, Obama Can but Trump Can’t

The Supreme Court endorses a double regulatory standard.

WSJ

Sometimes getting to the right policy via the wrong process does more harm than good. We fear that will be the case with Thursday’s unfortunate 5-4 Supreme Court decision to block President Trump’s rescission of Barack Obama’s order for Deferred Action for Childhood Arrivals, widely known as Daca.

The decision in DHS v. University of California is being cheered because it offers a reprieve to the so-called Dreamers who were brought to the U.S. illegally as children. We support legalization for these 700,000 or so immigrants, as a matter of fairness and as contributors to American life. But this is an issue for Congress. The Court’s ruling on administrative-law grounds reads like a desired policy outcome in search of justifying legal logic, and it is likely to do long-term harm to the Constitution’s separation of powers and maybe to immigration reform.

Chief Justice John Roberts joined the four liberals, as he so often has, in ruling that the Trump Administration hadn’t properly followed the Administrative Procedure Act (APA). The Court remanded the rescission back to DHS to rewrite with a formal rule-making with notice and comment period.

This may seem routine, but the problem is that the Obama Administration never followed the APA when it issued Daca in 2012. Daca was never tested in court, but the Fifth Circuit Court of Appeals in 2015 issued an injunction against a companion order to Daca. The Supreme Court upheld that injunction, and the Trump Administration had every reason to believe Daca was thus illegal too.

“Today the majority makes the mystifying determination that this rescission of DACA was unlawful. In reaching that conclusion, the majority acts as though it is engaging in the routine application of standard principles of administrative law,” Justice Clarence Thomas writes in a dissent joined by Samuel Alito and Neil Gorsuch. “On the contrary, this is anything but a standard administrative law case.”

As Justice Thomas explains, a President should not have to follow normal administrative procedures to reverse a policy that was unlawful in the first place.

The Chief strains to rationalize his double regulatory standard by quibbling that a memo by former DHS Secretary Kirstjen Nielsen in June 2018 that expands on its original legal justification for ending Daca is a “post hoc” rationalization. But as Justice Brett Kavanaugh explains in his dissent, the Chief’s logic stretches the Court’s own precedents to rule the Nielsen memo out of legal bounds.

The practical consequence of the ruling is that a President can create an unlawful policy without legislation from Congress, but a future President cannot lawfully undo it without first jumping through regulatory hoops that can take years. This is an invitation for executive mischief, especially by Presidents at the end of their terms. They’ll issue orders that will invite years of legal challenge if the next President reverses them.

As Justice Thomas puts it: “Today’s decision must be recognized for what it is: an effort to avoid a politically controversial but legally correct decision” that has “given the green light for future political battles to be fought in this Court rather than where they rightfully belong—the political branches.”

The result will also further diminish Congress, and one casualty could be immigration reform beyond Daca. President Trump’s Daca rescission had brought the political parties to the table, but Democrats now have little incentive to negotiate a compromise. They’ll hold out until they control the White House, impose their policies by executive fiat, and dare the Supreme Court to block them—and threaten to pack the Court if it does.

The Daca ruling is merely the latest in which the Chief Justice has joined the liberals to avoid a ruling that would have been criticized by the media and Democrats. Recall ObamaCare, the 2019 Census case, and Monday’s on sex and gender identity. It’s hard to avoid the conclusion that the campaign of intimidation and threat of court-packing by Senate Democrats are getting the results they want.

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