DACA’s Challenge for Chief Justice Roberts: The Rule of Law or Tool in Trump’s Toolbox?

Photograph Wikimedia Commons

Tomorrow, the United States Supreme Court hears arguments on the Deferred Action for Childhood Arrivals (DACA) case. In a normal world, we would wait for the arguments to glean clues as to which way the Court might rule.

But, we are not in normal times and this is not a normal Court.

Donald Trump and his leading anti-immigrant staffers, particularly Acting U.S. Citizenship and Immigration Services director Ken Cuccinelli, view the Supreme Court as a key part of their team to implement harsh policies. Trump’s administration has repeatedly dodged the normal judicial process to bring cases to the Supreme Court, knowing they had willing partners in John Roberts and other conservative justices. Twice in the recent months, that strategy has worked when the five conservatives backed Trump policy on the border wall and asylum.

Cuccinelli, who is a long-time player in nativist legal circles, has repeatedly stated his firm belief that the Supreme Court will deliver for Trump on DACA. Last August, according to Austin American-Statesman, Cuccinelli expressed confidence in the political reliability of the Court:

‘I fully expect DACA to be knocked down,’ said Cuccinelli, saying it will probably be a 5–4 decision delivered by the court in late January or early February.

Cuccinelli reasserted his confidence last month, per the Washington Times:

His agency manages the Obama-era DACA deportation amnesty that’s protecting hundreds of thousands of immigrant “Dreamers,” but he expects the Supreme Court to greenlight the Trump administration’s plans to phase DACA out.

Mr. Cuccinelli said the Dreamers would then be considered eligible for deportation, though most would not be priority targets, since they likely lack serious criminal records and don’t have deportation orders lodged against them.

After the Court ruled for Trump on asylum, Cuccinelli tweeted that the Trump administration “uses every tool in the toolbox” to enact its anti-immigrant agenda. It seems clear that on several occasions, the Supreme Court has proven to be one of those tools.

Chief Justice Roberts has lamented the politicization of the Supreme Courts — even as he has too often engaged in the very politicization he decries. On immigration, the politics are magnified when a top Trump immigration official boasts that the Supreme Court is one of the tools in their anti-immigrant toolbox. And, it’s particularly glaring in the DACA case where the law is clearly against them, as numerous lower court judges have made clear.

As long-time Supreme Court observer Linda Greenhouse laid out in her recent NYT column, Roberts should know better. Citing the Census decision in June, where Roberts wrote, “Reasoned decision making under the Administrative Procedure Act calls for an explanation for agency action. What was provided here was more of a distraction.” Greenhouse points out, “‘Reasoned decision making’ was glaringly absent from the administration’s rollout of the decision to terminate DACA.”

Lower courts have soundly rejected the Trump administration’s specious claim that there was no legal authority for DACA, thus they had to end it. As the New York Times reported this week, “Judges have ruled that by citing only a flawed legal rationale for ending DACA — and no policy justifications — the administration’s decision was “arbitrary and capricious,” an unlawful exercise of presidential power without any legitimate basis to end a program relied on by about 700,000 people.” That’s what lies before Roberts in the DACA case where the Trump administration wants him to uphold a political decision that has no legal basis. This case wouldn’t even be before the Court if, as Roberts claimed in September, “we don’t go about our work in a political manner.”

Yet here we are.

In the DACA case, and so many others major cases this term, many people’s rights hang in the balance. Just last week, Trump and Mitch McConnell held a White House event to tout their role in reshaping the federal courts to advance their political agenda. They were particularly gleeful about blocking the nomination of Merrick Garland, creating the space for Neil Gorsuch. As McConnell bragged:

[W]e got a chance to set the agenda, just an opportunity to move the ball in the right direction. What’s the most important thing? Clearly, it was the Supreme Court. You had been helped enormously by a decision that I made — and these guys will back me up — not to let President Obama fill that Scalia vacancy on the way out the door.

And, as we all know, Trump’s other Justice, Brett Kavanaugh, delivered an ominous — and judicially improper — warning at his confirmation hearing that “what goes around comes around,” after attacking “outside left-wing opposition groups” that opposed his nomination.

There’s a lot at stake for Chief Justice Roberts and our system of justice. For us, most important are the futures of hundreds of thousands of young people if the Supreme Court ends DACA. Trump and his team made a political decision to end DACA and tried to back-fill that move with weak and disingenuous legal rationales that didn’t hold up in lower Courts. Now, Trump wants what he views as his Supreme Court to validate it, regardless of what the law says.

So, once again, it’s up to Chief Justice Roberts. Will he let the Supreme Court become nothing more than a partisan political tool in Trump’s nativist toolbox — as Trump and his team expect — or will the Chief Justice of the United States stand for the rule of law?



Chair, #Immigration Law, Ulmer & Berne LLP, litigator, bylines @USAToday, @CNNOpinion, @msnbc @thehill @tpm @huffpost @HoustonChron, fmr pres @AILANational

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David Leopold

Chair, #Immigration Law, Ulmer & Berne LLP, litigator, bylines @USAToday, @CNNOpinion, @msnbc @thehill @tpm @huffpost @HoustonChron, fmr pres @AILANational