DACA Finally Headed To SCOTUS

DACA Finally Headed To SCOTUS

DACA Finally Headed To SCOTUS

Here we go. Opening arguments are beginning today in the Supreme Court on the DACA (Deferred Action for Childhood Arrivals) program that former President Obama willed into being with an executive order.

At the crux of the matter – it’s pretty obvious that Obama’s EO that created DACA runs afoul of immigration law. After all, he specifically said that he couldn’t do it, and then went ahead and did it anyway.

But an EO can be overturned by another EO, or by the courts. It’s not a permanent proclamation from on high that can only be countermanded by the executive who issued it. President Trump ended DACA under his own EO, and the lawfare ensued. Lower federal courts kept trying to reinstate DACA, directly pushing back on executive power. Apparently, executive fiat is okay when it’s something a federal judge agrees with, but not when it’s something they disagree with. (Which, honestly, is why one of President Trump’s biggest unsung successes, with the aid of Senator Mitch McConnell, is quiety getting more Constitutionalist judges approved by the Senate and remaking the face of the “activist” judiciary.)

And that leads to today, with opening oral arguments in front of the Supreme Court.

Key to the case is whether the government provided the proper rationale for ending the program. The liberal justices on the bench suggested the government had not done so — but the key votes could be Chief Justice John Roberts and Brett Kavanaugh, whose position at times seemed sympathetic to the government.”

Justices Elena Kagan, Steven Breyer, Ruth Bader Ginsburg and Sonia Sotomayor pushed the government hard, suggesting the administration had violated the law when it moved to phase out the program because it hadn’t taken into proper consideration how many people, organizations, educational institutions, would be impacted by an abrupt decision. To comply with administrative law, the justices suggested that the government had to provide a more reasoned decision. They questioned the government’s reliance on whether the original program was lawful.”

But Kavanaugh in his questions hinted that he thought the government had ultimately issued a memo — after the decision to terminate was made — that adequately explained its rationale and acknowledged the impact on those who had come to rely on the program. He called it a “considered decision.”

And Roberts noted that similar programs had been struck down by a federal appeals court.”

The initial reaction from the press? It will be a split decision with Roberts as the swing vote.


While the left demands that the human cost in ending DACA needs to be recognized, we also need to remember two things.

1) This is Obama’s fault.
The thing about executive orders is that they hang around the necks of the president who issues them, no matter what spin is tried later. Obama owns DACA, and he did it because he wanted an immigration reform, but couldn’t get one passed through a Republican-controlled Congress. (And why was Congress controlled by Republicans? Because he spent his first two years, when Congress was controlled by Democrats, in getting Obamacare passed, and thus spent all his political capital and paid for it in the 2010 midterms.) There were warnings at the time that whatever was done by EO could be undone the same way. Democrats, of course, never considered that for a second. After all, Hillary was supposed to win. Obama claimed it would be temporary. Trump simply did what any other Republican candidate on the 2016 debate stage would have done. The only reason this has been so long and drawn out is because of the continual court battle – which puts the lie to that “temporary” claim.

2) This is Congress’ fault.
If only we had, you know, an elected legislative body at the federal level, who, you know, WOULD ACTUALLY WRITE LAWS. Both parties have kicked the immigration can way down the road because they didn’t want to do the hard work, or be cast as “mean” or “racist” or whatever. President Trump may have undone DACA, but he didn’t get an immigration reform bill passed when the GOP had control over both the House and Senate (because he was working on the tax cuts. It’s almost as if Congress can barely focus on one subject at a time, despite over 500 members). The president has signaled his willingness to work with Democrats on getting immigration reform addressed.


The problem now, of course, is that certain cities and states are actively opposing ICE and refusing to work with the feds on even removing criminals. Shuffle a DACA reform bill into that deck of cards and you get one big mess, where law falls silent in the face of activism and feelings.

SCOTUS has the responsiblity of affirming that executive action can be undone by executive action. Congress has the responsiblity of getting off their asses and actually working on drafting and passing immigration reform. And if they can’t, why, exactly, are they holding office and taking taxpayer money for doing precisely nothing but agitating for impeachment?

Featured image: the Supreme Court building, Washington D.C., via Pixabay, Pixabay license

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6 Comments
  • GWB says:

    what any other Republican candidate on the 2016 debate stage would have done
    Ummm, well, no. A goodly chunk of them probably would have left it in place. Ironically, for the same reason you cite re Congress: avoiding contention by simply relying on what the previous administration had done. See, “ratchet effect”, “Overton window”, and “political class”.*

    Key to the case is whether the government provided the proper rationale for ending the program.
    This is absolute poppycock. It’s an EO. It requires no rationale whatsoever. Because it IS NOT A LAW.
    Oh, and it’s also NOT an executive branch regulation – which requires comment and such.

    To comply with administrative law
    Same answer.

    Of course, I’d sue in SCOTUS that the original EO was similarly situated – having no basis in law and showing inadequate justification.

    similar programs had been struck down by a federal appeals court
    Wow. So precedent flows upward now? On top of which, judicial precedent is an anti-republican, anti-Constitutional crock.

    the human cost in ending DACA needs to be recognized
    Nope. Just because people are benefiting from stealing from my house does NOT mean that I can not ABRUPTLY end such theft.
    BTW, I suggest that if those “dreamers” want to get angry at someone, they should get angry at the people who encouraged their parents to violate the law, then failed to prosecute them.

    It’s almost as if Congress can barely focus on one subject at a time
    Most of the time they can’t even do that.

    The problem now, of course
    Well, that’s part of the problem. The real problem is that a huge portion of our electorate continues to elect people in open rebellion against our republic and its Constitution. We need to elect people who take that document seriously (and literally), and appoint judges who do the same. We need to educate our fellow citizens, and we need to provide for direct, personal consequences for those who violate the Constitution.
    (Bringing back flogging would be a good start. Only allowed as a punishment for those in the gov’t who violate the Constitution or their oaths of office.)

  • Kevin says:

    As a progressive viewpoint … I agree with GWB and Ms. Fisher. One president creates an executive order by going around congress and a different president rescinds that executive order. It’s pretty simple … if one president can do it so can another … flipping orders or creating new orders. When Obama was president, conservatives were vocal about him going around congress. When Trump took over, the same thing occurred (I think minus the vocal outrage from conservatives) with executive orders flying out of the Oval Office. It would behoove congress, either a conservative or progressive majority lead congress, to exert their power as the creator of the nation’s laws and stand up to the president (either conservative or progressive) in the face of unconstitutional actions.

    Now, on to the how this is going to look to the public, especially right before a presidential election. The Supreme Court will probably release their decision in early summer, just five months before the election. I don’t think this is going to play well with independent swing voters. The optics are not going to be good for the Republicans nor does any Republican running want to call for the immediate removal of DACA participants. There will be cameras focused on the 26 year old female who came here when she was an infant who now is finishing up her advanced degree in nursing that she received without public assistance because she earned her money overnight job caring for homeless military veterans with dementia. It’s not going to be pretty.

    Lastly, yesterday President Trump tweeted, “Many of the people in DACA, no longer very young, are far from “angels.” Some are very tough, hardened criminals. President Obama said he had no legal right to sign order, but would anyway. If Supreme Court remedies with overturn, a deal will be made with Dems for them to stay!” Where have we heard Trump will make a “better” deal with the Democrats? I doubt this will occur. Also, in his tweet, he calls “some” DACA recipients “tough, hardened criminals” yet he wants to make a deal for them to stay? I say this respectfully and not to initiate a conservative/progress verbal battle … many of President Trump’s statements are contradictory, at best. He says one thing and then turns around and says the exact opposite leaving one’s head to spin.

    • GWB says:

      (I think minus the vocal outrage from conservatives)
      Primarily because he was rescinding 0bama’s overreach. Those of us around here have complained about any overreach Trump has committed.

      many of President Trump’s statements are contradictory, at best
      I won’t disagree with this. However, understanding his NYC business tycoon mind allows you to grasp it a bit better. He’s always looking for the deal so he can have accomplished something.

      As to it looking bad next summer? Not necessarily. Vast numbers of those who might vote for him have hit Compassion Burnout on illegal aliens. They are NOT entitled to anything here, and the constant left push to turn them into “angels” alienates scads of people. The internet will counter that narrative you mention (I don’t disagree that’s what the Dems/media will do) with all the stories of illegal aliens raping and murdering and assaulting – it’s still anecdote, but it is likely to overwhelm the mass media stories.

      If that were the only fight between left and ‘right’ at the moment, your scenario might be dispositive. But there’s so much else alienating the electorate right now, I think this will add in Trump’s favor.

      • GWB says:

        any overreach Trump has committed
        I should say “has committed or claimed he was going to commit.”
        Because it seems he has heard conservative (and plain ol’ middle-American) outcry when he has proposed some things and has backed off in the face of it. (Unlike 0bama.)

      • Kevin says:

        GWB wrote “I won’t disagree with this. However, understanding his NYC business tycoon mind allows you to grasp it a bit better. He’s always looking for the deal so he can have accomplished something.”

        GWB, respectfully, I see it a bit differently. I see it as him always playing both sides of the fence. Hence, when the average layperson is asked what Donald Trump stands for it’s not easy to answer. When he’s confronted he always references the opposite statement he made. “No, I didn’t call DACA participants hardened criminals. I called them Angels.” Which leads to his ultimate intention, I think, creating confusion.

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