Trump’s Corner-Cutting Fails Him as Supreme Court Losses Mount
Trump’s Corner-Cutting Fails Him as Supreme Court Losses Mount
(Bloomberg) -- When it comes to the U.S. Supreme Court, President Donald Trump’s administration is becoming its own worst enemy.
The repeated blows left Trump seething. “Do you get the impression that the Supreme Court doesn’t like me?” he asked his Twitter followers on Thursday.
But the DACA decision suggested it was Trump’s penchant for short-cuts, rather than any personal animus, that led him to defeat. In joining the court’s liberals in a 5-4 ruling Thursday, Chief Justice John Roberts said Trump’s Department of Homeland Security had ample authority to end the Obama administration program, Deferred Action for Childhood Arrivals, which prevents deportation of almost 700,000 undocumented immigrants brought to the U.S as children and allows them to get work permits.
The problem, Roberts said, was that officials didn’t provide the kind of thoughtful consideration required under the federal law that governs administrative agencies. He faulted DHS for not balancing its desire to end the program with the impact on DACA recipients, as well as their employers, their 200,000 U.S. citizen children and the national economy.
“Making that difficult decision was the agency’s job, but the agency failed to do it,” Roberts wrote.
Trump signaled Friday he wasn’t giving up. In a tweet, Trump said the administration “will be submitting enhanced papers shortly in order to properly fulfill the Supreme Court’s ruling & request of yesterday.”
The Supreme Court ruling left open the possibility that DHS could try again to rescind DACA, though that may prove impossible before the November election given the near-certainty of a new court challenge.
The ruling bore similarities to last year’s decision thwarting the administration’s bid to add a citizenship question to the 2020 census.
In that case, Roberts faulted the administration for giving a “contrived” rationale for adding the question. As with DACA, Roberts joined with the court’s four Democratic appointees and provided the decisive fifth vote against the administration.
“Chief Justice Roberts did here exactly what he did in the census case last year,” Jeffrey Rosen, president of the National Constitution Center, said on MSNBC. “He said the Trump administration may not change its policies based on invented reasons.”
Like many Trump administration decisions, the DACA rescission came together quickly -- perhaps too quickly in retrospect. In June 2017, Republican-controlled states threatened to sue if the administration didn’t take steps to end the program.
On Sept. 4, 2017, then-Attorney General Jeff Sessions sent a one-page letter to then-Acting Homeland Security Secretary Elaine Duke saying the program violated the Constitution and federal law. A day later, Duke rescinded the program, citing questions about its legality as her sole basis.
It was only after litigation began -- and lower courts began ruling against the administration -- that DHS tried to give an explanation that went beyond the program’s perceived illegality. In a June 2018 memo, then-Secretary Kirstjen Nielsen said the administration believed a case-by-case approach would be wiser than DACA’s exemption of a broad category of people from deportation.
Roberts said that memo included “impermissible post hoc rationalizations.”
“The basic rule here is clear: An agency must defend its actions based on the reasons it gave when it acted,” Roberts wrote. “This is not the case for cutting corners to allow DHS to rely upon reasons absent from its original decision.”
‘Timidity’ Faulted
Dissenting Justice Clarence Thomas said DHS was right to deem the program illegal -- and didn’t need to provide any further explanation.
“Today’s decision must be recognized for what it is: An effort to avoid a politically controversial but legally correct decision,” Thomas wrote. “Such timidity forsakes the court’s duty to apply the law according to neutral principles, and the ripple effects of the majority’s error will be felt throughout our system of self-government.”
Some Republican lawmakers blasted Roberts’s decision. Senator Ted Cruz of Texas said on the Senate floor that the Republican-appointed Roberts “has been playing games with the court to achieve the policy outcomes he desires.”
Roberts, a 65-year-old onetime Reagan administration official, has been a target for criticism from both sides since his 2005 appointment by President George W. Bush. Democrats have derided him for undercutting the Voting Rights Act and campaign finance regulations and later backing Trump’s travel ban, which limits entry into the U.S. from a group of predominantly Muslim countries.
Republicans have castigated the chief justice for his pivotal 2012 vote to uphold President Barack Obama’s Affordable Care Act. As a presidential candidate, Trump called Roberts an “absolute disaster” because of that vote.
Supporters of the latest ruling say it is less about Roberts than it is about Trump.
The ruling was a “true indictment of the way President Donald Trump does his business,” California Attorney General Xavier Becerra, who sued to challenge the DACA rescission, told reporters. “The way Donald Trump does business is not America’s way. The way Donald Trump does business is not according to the rule of law.”
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