Supreme Court’s Illegal Immigration Ruling Applies Different Legal Standards To Different Presidents
And it allows presidents to legislate, a recipe for everexpanding federal and executive power.
By Ilya Shapiro
June 19, 2020
June 18’s Supreme Court ruling on the Deferred Action for Childhood Arrivals (DACA) program is bad judging on top of bad lawyering. It has good shortâ€â€‹term practical effects but makes policy reform harder in the longer term.
Recall what’s going on here: In 2012, the Department of Homeland Security (DHS) issued a memo creating DACA, which allows people who were brought here illegally as children (the so-called Dreamers) to apply for a renewable “lawful presence†status exempting them from removal, along with work authorizations and other benefits. Two years later, it created a similar program, the Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA).
In the 2016 case Texas v. United States, an evenly divided 4-4 court (after Justice Antonin Scalia’s passing) affirmed without opinion an injunction issued against DAPA for violating the Immigration and Nationality Act (INA). In June 2017, based on an opinion of Attorney General Jeff Sessions that DACA was unlawful because its defects mirrored those in DAPA, DHS announced a phase-out of DACA, which has been stuck in the courts ever since.
But Chief Justice John Roberts’s majority opinion didn’t simply adopt the lower courts’ reasoning that DACA was likely lawful and thus the administration couldn’t end it so easily. Instead, he first found that “DACA is more than a non-enforcement policy†of the kind that merits broad deference to the executive branch, but also an affirmative-benefits policy, the rescission of which must follow the niceties of the Administrative Procedure Act (APA). And since both the Fifth Circuit in the DAPA case and Sessions in his memo focused only on the illegality of granting certain benefits, DHS’s action was “arbitrary and capricious,†a no-no in administrative law.
more
https://thefederalist.com/2020/06/19/supreme-courts-illegal-immigration-ruling-applies-different-legal-standards-to-different-presidents/
