5 ms·

Setting aside for a moment whether DACA is 'good' or not, this seems like a bit of a strange decision to me. If rescinding DACA via memorandum was unlawful as a

by rrss 6y ago

Setting aside for a moment whether DACA is 'good' or not, this seems like a bit of a strange decision to me. If rescinding DACA via memorandum was unlawful as a violation of the APA, why was implementing it by memorandum lawful? I haven't yet read the entire majority opinion, and maybe it will change my mind, but right now I tend to agree with Thomas: > Perhaps even more unfortunately, the majority’s holding creates perverse incentives, particularly for outgoing administrations. Under the auspices of today’s decision, administrations can bind their successors by unlawfully adopting significant legal changes through Executive Branch agency memoranda. Even if the agency lacked authority to effectuate the changes, the changes cannot be undone by the same agency in a successor administration unless the successor provides sufficient policy justifications to the satisfaction of this Court. In other words, the majority erroneously holds that the agency is not only permitted, but required, to continue administering unlawful programs that it inherited from a previous administration. I respect-fully dissent in part.

ceejayoz 6y ago
> why was implementing it by memorandum lawful? Because both implementing it and rescinding it are potentially lawful. SCOTUS hasn't ruled on that. The Court simply says rescinding it in a particular manner that violates the Administrative Procedures Act is not lawful. It's a technicality; "go back and try again". The administration didn't dot their Is and cross their Ts, so they got a smack on the wrist for it.
- rrss 6y ago
  but what's weird is that the Obama administration didn't 'dot their Is and cross their Ts' either. The rescission of DACA has been held to this "arbitrary and capricious" standard, but the implementation never was. The Supreme Court declined to review the lawsuit that challenged DACA as a violation of the APA (probably because the plaintiff didn't have standing). It seems like the States that challenged DAPA will now challenge DACA on the same grounds, so this decision is just the Supreme Court intentionally stalling - the majority opinion is that the rescission is not sufficiently justified, and it seems like whether the implementation was unlawful is pretty important to decide whether the justification was sufficient.
  - ceejayoz 6y ago
    > what's weird is that the Obama administration didn't 'dot their Is and cross their Ts' either This decision explicitly says otherwise; that they created a specific program with specific requirements that follow the APA's rules. > Based on this directive, USCIS solicited applications from eligible aliens, instituted a standardized review process,and sent formal notices indicating whether the alien would receive the two-year forbearance. These proceedings are effectively “adjudicat[ions].” > In short, the DACA Memorandum does not announce a passive non-enforcement policy; it created a program for conferring affirmative immigration relief.The creation of that program—and its rescission—is an “action [that] provides a focus for judicial review.” Id., at 832. The benefits attendant to deferred action provide further confirmation that DACA is more than simply a non-enforcement policy. As described above, by virtue of receiving deferred action, the 700,000 DACA recipients may request work authorization and are eligible for Social Secu-rity and Medicare. See supra, at 3. Unlike an agency’s refusal to take requested enforcement action, access to these types of benefits is an interest “courts often are called upon to protect.” Chaney, 470 U. S., at 832. See also Barnhart v. Thomas, 540 U. S. 20 (2003) (reviewing eligibility determination for Social Security benefits).
    - enraged_camel 6y ago
      Yeah, that's one thing most people don't understand about Obama: he may have issued a lot of executive orders, but his administration spent a considerable amount of time on making sure the provisions and programs created by those orders were extensive and thorough. SCOTUS is basically saying, "nope, you can't just declare your predecessor's work illegal and null and void and call it a day, you need to actually provide good reasons for why each part is illegal and should be undone."
      - masonic 6y ago
        The Obama had the worst record of any administration at having actions overturned by the Supreme Court... and having the most overturned unanimously. https://freebeacon.com/politics/study-obama-worst-record-supreme-court-modern-history/ https://freebeacon.com/politics/study-obama-worst-record-sup...
epistasis 6y ago
If the Trump administration had a patch for the Linux kernel, they'd try to submit it by directly emailing Linus a Word document with vague suggestions. Or if they found somebody particularly competent, perhaps a word document that contained code. This is the level of legal incompetence that the administration uses in almost every arena where they make lots of noise. It should be no surprise that they fail at very basic levels before any grander legal question can be debated.
- rrss 6y ago
  DACA was also a Word document emailed to Linus, but it's now upstream.
  - epistasis 6y ago
    If that were true, and given the huge amount of opposition that DACA faces from well funded political foes, wouldn't there have been a successful legal challenge against DACA at some point, prior to Trump's incompetent attempts? If it was as easy to shoot down as Trump's challenge, I would be shocked that nobody had done it yet.
    - rrss 6y ago
      I haven't been able to find such a challenge. As far as I can tell, the only lawsuit challenging the creation of DACA as a violation of the APA was filed by that sheriff dude in Arizona and thrown out because the lower courts ruled he didn't have standing. It looks like the States that oppose DACA didn't bother to challenge it on these grounds because the Trump administration rescinded it.
      - epistasis 6y ago
        First, I'm not convinced that the original DACA was as bad as emailing Linus a Word kernel patch. But if it were, I can think of another reason that nobody bothered to challenge it: because it's wildly popular and would be politically disastrous to challenge it and tear it down. As somebody who believes that this court is more motivated by partisan political concerns than legal reasoning, it seems likely to me that Roberts ruled against this not out of true legal principle, but because it would be so wildly unpopular in an election year that he doesn't like the consequences. There are many realities that seem plausible here.
brandmeyer 6y ago
Its subtle. > Duke was bound by the Attorney General’s determination that DACA is illegal. [...] The Attorney General concluded that the legal defects in DACA mirrored those that the courts had recognized in DAPA. The Fifth Circuit [...] found that DAPA violated the INA because it extended eligibility for benefits to a class of unauthorized aliens. But the defining feature of DAPA (and DACA) is DHS’s decision to defer removal, and the Fifth Circuit carefully distinguished that forbearance component from the associated benefits eligibility. Eliminating benefits eligibility while continuing forbearance thus remained squarely within Duke’s discretion. Yet, rather than addressing forbearance in her decision, Duke treated the Attorney General’s conclusion regarding the illegality of benefits as sufficient to rescind both benefits and forbearance, without explanation. That reasoning repeated the error in Motor Vehicle Manufacturers Association of the United States, Inc. v. State Farm— treating a rationale that applied to only part of a policy as sufficient to rescind the entire policy. In short, even if you take the Trump administration's rationale at face value, the only portion of DACA which has been determined to be illegal by either a court or the administration was the extension of SS & Medicare benefits to illegal aliens. The "deferred action" part of DACA has never been considered illegal.
- rrss 6y ago
  Thanks, this makes somewhat more sense.

by rrss 6y ago

ceejayoz 6y ago

> why was implementing it by memorandum lawful? Because both implementing it and rescinding it are potentially lawful. SCOTUS hasn't ruled on that. The Court simply says rescinding it in a particular manner that violates the Administrative Procedures Act is not lawful. It's a technicality; "go back and try again". The administration didn't dot their Is and cross their Ts, so they got a smack on the wrist for it.

rrss 6y ago
but what's weird is that the Obama administration didn't 'dot their Is and cross their Ts' either. The rescission of DACA has been held to this "arbitrary and capricious" standard, but the implementation never was. The Supreme Court declined to review the lawsuit that challenged DACA as a violation of the APA (probably because the plaintiff didn't have standing). It seems like the States that challenged DAPA will now challenge DACA on the same grounds, so this decision is just the Supreme Court intentionally stalling - the majority opinion is that the rescission is not sufficiently justified, and it seems like whether the implementation was unlawful is pretty important to decide whether the justification was sufficient.
- ceejayoz 6y ago
  > what's weird is that the Obama administration didn't 'dot their Is and cross their Ts' either This decision explicitly says otherwise; that they created a specific program with specific requirements that follow the APA's rules. > Based on this directive, USCIS solicited applications from eligible aliens, instituted a standardized review process,and sent formal notices indicating whether the alien would receive the two-year forbearance. These proceedings are effectively “adjudicat[ions].” > In short, the DACA Memorandum does not announce a passive non-enforcement policy; it created a program for conferring affirmative immigration relief.The creation of that program—and its rescission—is an “action [that] provides a focus for judicial review.” Id., at 832. The benefits attendant to deferred action provide further confirmation that DACA is more than simply a non-enforcement policy. As described above, by virtue of receiving deferred action, the 700,000 DACA recipients may request work authorization and are eligible for Social Secu-rity and Medicare. See supra, at 3. Unlike an agency’s refusal to take requested enforcement action, access to these types of benefits is an interest “courts often are called upon to protect.” Chaney, 470 U. S., at 832. See also Barnhart v. Thomas, 540 U. S. 20 (2003) (reviewing eligibility determination for Social Security benefits).
  - enraged_camel 6y ago
    Yeah, that's one thing most people don't understand about Obama: he may have issued a lot of executive orders, but his administration spent a considerable amount of time on making sure the provisions and programs created by those orders were extensive and thorough. SCOTUS is basically saying, "nope, you can't just declare your predecessor's work illegal and null and void and call it a day, you need to actually provide good reasons for why each part is illegal and should be undone."
    - masonic 6y ago
      The Obama had the worst record of any administration at having actions overturned by the Supreme Court... and having the most overturned unanimously. https://freebeacon.com/politics/study-obama-worst-record-supreme-court-modern-history/ https://freebeacon.com/politics/study-obama-worst-record-sup...

epistasis 6y ago

If the Trump administration had a patch for the Linux kernel, they'd try to submit it by directly emailing Linus a Word document with vague suggestions. Or if they found somebody particularly competent, perhaps a word document that contained code. This is the level of legal incompetence that the administration uses in almost every arena where they make lots of noise. It should be no surprise that they fail at very basic levels before any grander legal question can be debated.

rrss 6y ago
DACA was also a Word document emailed to Linus, but it's now upstream.
- epistasis 6y ago
  If that were true, and given the huge amount of opposition that DACA faces from well funded political foes, wouldn't there have been a successful legal challenge against DACA at some point, prior to Trump's incompetent attempts? If it was as easy to shoot down as Trump's challenge, I would be shocked that nobody had done it yet.
  - rrss 6y ago
    I haven't been able to find such a challenge. As far as I can tell, the only lawsuit challenging the creation of DACA as a violation of the APA was filed by that sheriff dude in Arizona and thrown out because the lower courts ruled he didn't have standing. It looks like the States that oppose DACA didn't bother to challenge it on these grounds because the Trump administration rescinded it.
    - epistasis 6y ago
      First, I'm not convinced that the original DACA was as bad as emailing Linus a Word kernel patch. But if it were, I can think of another reason that nobody bothered to challenge it: because it's wildly popular and would be politically disastrous to challenge it and tear it down. As somebody who believes that this court is more motivated by partisan political concerns than legal reasoning, it seems likely to me that Roberts ruled against this not out of true legal principle, but because it would be so wildly unpopular in an election year that he doesn't like the consequences. There are many realities that seem plausible here.

brandmeyer 6y ago

Its subtle. > Duke was bound by the Attorney General’s determination that DACA is illegal. [...] The Attorney General concluded that the legal defects in DACA mirrored those that the courts had recognized in DAPA. The Fifth Circuit [...] found that DAPA violated the INA because it extended eligibility for benefits to a class of unauthorized aliens. But the defining feature of DAPA (and DACA) is DHS’s decision to defer removal, and the Fifth Circuit carefully distinguished that forbearance component from the associated benefits eligibility. Eliminating benefits eligibility while continuing forbearance thus remained squarely within Duke’s discretion. Yet, rather than addressing forbearance in her decision, Duke treated the Attorney General’s conclusion regarding the illegality of benefits as sufficient to rescind both benefits and forbearance, without explanation. That reasoning repeated the error in Motor Vehicle Manufacturers Association of the United States, Inc. v. State Farm— treating a rationale that applied to only part of a policy as sufficient to rescind the entire policy. In short, even if you take the Trump administration's rationale at face value, the only portion of DACA which has been determined to be illegal by either a court or the administration was the extension of SS & Medicare benefits to illegal aliens. The "deferred action" part of DACA has never been considered illegal.

rrss 6y ago
Thanks, this makes somewhat more sense.