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Conservative Chief Justice John Roberts Saves DACA and Dreamers

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I’m very happy to report that I was wrong. I wrote yesterday that all the conservatives on the Supreme Court would go along with President Donald Trump’s decision to scrap Deferred Action Against Childhood Arrivals (DACA)—the Obama-era program that gave temporary legal status to Dreamers, or folks who were brought to this country as minors without proper authorization—on the grounds that a president has wide discretion to set immigration enforcement priorities. But in a ruling released hours ago, Chief Justice John Roberts joined the four liberals on the Supreme Court and saved DACA.

The ruling was based on very narrow grounds that ducked whether or not DACA was originally legal (the Trump administration had claimed that it was not), or whether Trump was within his rights to eliminate it (there were good reasons to believe he was). Instead of answering those questions, today’s ruling focused on the question of whether Trump followed the requirements of the Administrative Procedures Act when he ended DACA.

As I wrote yesterday:

He [Trump] yanked it [DACA] suddenly, without offering a notice and comment period as required by the Administrative Procedure Act.

Interestingly, Obama didn’t submit DACA for notice and comment before implementing the program either. However, two wrongs don’t make a right. Moreover, The Atlantic’s Garrett Epps explains that the two moves are not analogous because before DACA, its beneficiaries had formed no “reliance interests” in the program but now they have. They and their loved ones, many of them American, stand to lose something now and should have been given an opportunity to weigh in on Trump’s decision. More to the point, DACA recipients shared their personal information with the government, including names, addresses, and employers. That same information could now be used to deport them. If the Trump administration had put its decision up for feedback as required, it would have had to at least put in place safeguards barring Immigration and Customs Enforcement (ICE) from using this information for deportation purposes.

The ruling notes:

We do not decide whether DACA or its rescission are sound policies. “The wisdom” of those decisions “is none of our concern.” Chenery II, 332 U. S., at 207. We address only whether the agency complied with the procedural requirement that it provide a reasoned explanation for its action. Here the agency failed to consider the conspicuous issues of whether to retain forbearance and what if anything to do about the hardship to DACA recipients. That dual failure raises doubts about whether the agency appreciated the scope of its discretion or exercised that discretion in a reasonable manner. The appropriate recourse is therefore to remand to DHS so that it may consider the problem anew.”

Translation: The administration acted in a sloppy and careless fashion and failed to provide a rational explanation for what it was doing.

The ruling acknowledged that the lead dissent penned by Justice Clarence Thomas (which Justices Neil Gorsuch and Samuel Alito joined) saw things differently. “In its view, DACA is illegal, so any actions under DACA are themselves illegal. Such actions, it argues, must cease immediately and the APA should not be construed to impede that result.” Justice Brett Kavanaugh wrote a separate dissent.

However, Justice Roberts noted, that the administration’s failure to accommodate the “particular reliance interests” made the elimination of DACA “arbitrary and capricious in violation of the APA.”

This is obviously great news for Dreamers because the administration does not have the time now to scrap DACA before the November elections. It is also good news for the vast majority of the country, including 69 percent of Trump voters, who don’t have the stomach to watch folks who’ve built crime-free lives in America with their grit and hard work hauled away from family and friends into detention camps and deported to countries they don’t know.

But it is also good news for the president himself because the ruling extricates him from a political trap of his own making. As I noted yesterday:

Having squandered the opportunity to pass legislation to give them [Dreamers] legal status, he will anger his hardline restrictionist base if he fails to deport these people when he has the green light. If he does deport, he will anger many Americans.

It’s a win-win-win.


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About The Author

Shikha Dalmia

Founded in 1968, Reason is the magazine of free minds and free markets. We produce hard-hitting independent journalism on civil liberties, politics, technology, culture, policy, and commerce. Reason exists outside of the left/right echo chamber. Our goal is to deliver fresh, unbiased information and insights to our readers, viewers, and listeners every day. Visit

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