In DACA ruling, the Roberts court chooses politics over law

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Chief Justice John Roberts on Thursday threw up yet another obstacle to President Trump’s repeal of an Obama-era executive action.

It’s not that Trump imposed an illegal or unconstitutional policy in 2017 when he repealed President Barack Obama’s program, known as Deferred Action for Childhood Arrivals. Rather, Roberts and the liberal justices found a cheap technical loophole that places the policy on hold.

In essence, because an initial memo explaining Trump’s policy was inadequate, a three-year effort to rescind an Obama executive memorandum has been nullified. Good luck, says the Roberts Court — see you back here in another three years!

Justice Clarence Thomas nailed it in his dissent when he characterized this ruling as a legal evasion. “Today’s decision must be recognized for what it is: an effort to avoid a politically controversial but legally correct decision.”

The issue is that, from a political perspective, no one wants to deport DACA recipients — foreign nationals who were brought to the United States illegally as children. Conservatives don’t want them deported, and neither do liberals. Trump voters don’t want them deported. Trump himself says he doesn’t want them deported. In fact, political danger would befall anyone who proved unwilling to play ball in a legislative compromise on DACA recipients’ fate.

But politics aside, Trump possesses the legal power to undo Obama’s executive actions on immigration. Even if DACA was legal in the first place — and Obama himself expressed doubts about this — Trump was well within his power to revert immigration policy to the status quo ante that had existed through Obama’s first term.

Rather than face this politically uncomfortable fact, Roberts and the four liberal justices played politics and bought some time. Their legal technicality delays a needed political and legislative reckoning on immigration policy.

The separation of powers deserved a less evasive answer than this. Judges don’t get to decide political questions such as immigration policy. There is no shortcut in a democracy to having the legislature decide this question. It has so far chosen not to settle the matter, and no one else has the right to do so in the absence of a congressional delegation of authority.

As Thomas notes, Thursday’s ruling “creates perverse incentives” for future administrations to impose dubious or even bizarre or illegal policies as they leave office. Under this precedent, those last-minute orders might as well be written in stone. “The majority,” Thomas writes, “erroneously holds that the agency is not only permitted, but required, to continue administering unlawful programs that it inherited from a previous administration.”

When the Roberts-led majority committed this legal travesty, it did so in hopes of creating a more politically acceptable outcome. But in this, too, it failed. By dodging the legal question at hand in favor of a less politically risky outcome, Roberts has virtually guaranteed continued uncertainty for DACA recipients.

Recall that when he canceled DACA, Trump was trying to force all sides in Congress into what would have to become a bipartisan compromise. Finally, these immigrants would receive formal legal status — perhaps even as part of a larger and long-elusive immigration reform compromise.

Now, thanks to the justices’ wrong-headed meddling in political concerns outside of their purview, these covered immigrants will linger indefinitely. They will be temporarily protected from deportation but possessed of no long-term certainty except that, if they ever do become citizens, the votes they cast for their lawmakers won’t really mean anything.

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