Today’s Supreme Court ruling on DACA is bad judging on top of bad lawyering that has good short‐term practical effects but makes policy reform harder in the longer term. The technical reason for blocking DACA rescission—that the administration didn’t jump through the proper hoops—is debatable, and I think Justice Kavanaugh’s dissent has the better of that argument over Chief Justice Roberts’s majority opinion.
But it’s clear that the administration didn’t do a good job spelling out its decision, or differentiating the part of DACA that’s legal (“forbearance,” or deprioritizing removal of certain classes of people) from the part that’s not (granting temporary status and benefits). Roberts recognizes this when he says, “Because the DACA program is more than a non‐enforcement policy, its rescission is subject to review under the APA.”
The problem is that because DACA is more than non‐enforcement, more than executive or prosecutorial discretion, it goes beyond the powers presidents are given under immigration law. Indeed, it goes beyond the powers presidents can be given, because these sorts of actions constitute making rather than enforcing the law.
In other words, the majority says that President Trump issued a new regulation without giving sufficient reasoning and otherwise following Administrative Procedure Act, which isn’t an unreasonable way to read the law even if I ultimately disagree.
But if that’s the case, then President Obama acted even more egregiously in rewriting the law in the first place. The Court could’ve avoided that glaring hole in its administrative‐law reasoning by just deferring to the administration’s reasonable if insufficiently explained legal judgment, as Cato’s amicus brief suggested.
Instead, it has set a precedent that one president’s executive action can’t be rescinded by the next president unless he jumps through hoops that his predecessor didn’t have to. That’s a recipe for ever‐expanding federal and executive power, to the detriment of our constitutional system of government.
Finally, as a matter of policy, it’s a very good thing that DACA beneficiaries—themselves no strangers to jumping through administrative hoops—will now be allowed to stay in the country. Good for them and good for the country.
But for how long? Because today’s decision not only goes against the rule of law, it harms the prospects for fixing our broken immigration system.
A decision upholding rescission would’ve forced Congress’s hand. Now we’re left with a continued mutually antagonistic muddle.