Chief Justice John Roberts wrote the majority opinion in the matter of Department of Homeland Security, (DHS) et. al., v. Regents of the University of California, et. al., which most people know as the case dealing with the legality of the Deferred Action for Childhood Arrivals (DACA). President Barack Obama created DACA by executive order in 2012. DACA allows individuals illegally brought to the country as children a renewable two-year period of deferred action from deportation and allows them to become eligible for a work permit in the U.S. President Donald Trump made a campaign promise to reverse DACA once he became president. Through a declaration that DACA was illegal by then-Attorney General Jeff Sessions and a rescission memorandum by Acting DHS Secretary Elaine C. Duke, Trump delivered on that promise in 2017.
The majority of the Supreme Court just overturned Trump’s action, with the Chief Justice writing the opinion. We frame the decision’s larger implications through the lens of Justice Roberts, who, as chief justice, may find himself as the fifth vote for the majority on several key issues.
Roberts Will Not Reward Donald Trump’s Impulsive Approach to Governing
The challenges to DACA in lower courts claimed that DHS’s decision to rescind DACA was arbitrary and capricious in violation of the Administrative Procedure Act (ACA), which governs the way federal administrative agencies propose and establish regulations. Even as the Trump administration added other reasons to justify its action through a permanent DHS Secretary (Kirstjen M. Nielsen), the Courts pointed out that its judicial review of agency action is limited to the grounds that the agency invoked when it first took the action.
Roberts, per the opinion, stated that the wisdom of DACA (either having it or not) “is none of [the Court’s] concern.” The Court only sought to address whether DHS provided a “reasoned explanation for its action,” as procedurally required. Roberts stated that “the agency failed to consider the conspicuous issues of whether to retain forbearance (deferred action) and what if anything to do about the hardship to DACA recipients.”
There is no legal question on this point: just as a president (Obama) did DACA; a president (Trump) may undo DACA. How it is undone will be paramount. This is not the first time that President Trump (who claimed to loath broad executive power until he became president) has jumped the gun on issuing an order that was less than well reasoned because of campaign promises on hot-button issues. A prime example is the first iteration of the travel ban, done a week after Trump came into office, which singled out Muslim countries. In short, the President’s desire to undo DACA “by any means necessary” found DHS skipping the required thought process which would have resulted in its decision passing muster. That haphazard approach in the first instance created the impetus for the Supreme Court’s decision.
Roberts Does Not Ignore the Practical Effect of the Court’s Decisions
The decision to get rid of DACA would affect many people, starting with 700,000+ DACA recipients and their families. The relevant procedures would have required DHS to address the real hardship that would result from uprooting so many people, who are law abiding (DACA recipients can have no felonies or serious misdemeanors to qualify) and involved in all walks of American life. On the other hand, the Court pointed out that, despite the Attorney General’s determination of DACA’s illegality, DHS did not deal with the practical effect of the DACA rescission, which is in its discretion to do. Specifically, the Court stated that the rescission memorandum failed to consider important aspects of the problem before the agency, including whether the AG’s determination would mean rescinding both benefits (DACA recipients are eligible for while in the country) and forbearance (deferred removal from the country despite undocumented status). Per the Court, the DHS rescission (mistakenly) treated the AG’s decision as grounds to rescind both benefits and forbearance. Not dealing with these issues, among other things, ignored the reality that DACA has layers of complications in its practical effect, and the Court would not allow DHS to eliminate DACA without adequately dealing with those complications.
Roberts Does Not Ignore Public Sentiment
According to some polls, anywhere between 70% and 90% of the American public supports maintaining the DACA Program. The Obama Administration correctly calculated that protecting the children of those that made the decision to enter into the country illegally would garner support. (Obama’s later DAPA program [Deferred Action for Parents of American and Lawful Permanent Residents] was less popular; it was challenged in court and enjoined; the Supreme Court left an injunction against it in place without setting a precedent.) In short, people agree with the inclination not to punish children who did not, and who could not due to their age, make the decision to enter into the country illegally, given this is the only country many of them have known as home. This reality cannot be lost on the Court and particularly the chief justice.
Roberts is Concerned About His Court’s Legacy
The discussion surrounding the Supreme Court has become perhaps more politicized than ever. Each side of the political aisle believes that its endgame is maximizing judicial appointments which would be more favorable toward its political goals. Donald Trump has supercharged this sentiment, often openly expressing expectations that justices he picks would decide things his way. Roberts must know that being considered “in line” with the often emotional and less then thoughtful whims of the president undermines the notion that the judiciary is truly independent. As a result, Roberts has rebuked Trump’s criticism of what he called an “Obama judge” who did not decide the asylum ban in Trump’s favor in the 9th Circuit, and defended the judiciary’s independence.
Ultimately, Chief Justice Roberts, a conservative himself, is not worried about having a conservative court. The Court has been conservative leaning for decades. However, he clearly wants the Court to be thoughtful and independent, and seen as such. For this reason, Roberts may see himself as the “bridge” that confirms the court’s independence, making for some pragmatic rulings in the future.
Joseph Richardson is an attorney in Southern California.
This is an opinion piece. The views expressed in this article are those of just the author.