I’d like to say I’m surprised by this, but it’s completely predictable. In fact, Justice John Roberts wrote the majority decision in this case, something my five year old could have foreseen given his recent track record.
The Supreme Court has ruled that Trump can not end the DACA program, which was arbitrarily and illegally enacted by his predecessor, Barack Obama. The reasoning is as stupid as the decision.
"The rescission must be vacated." pic.twitter.com/aZHQ9HpDSQ
— Eric McDaniel (@ericmcdanieldc) June 18, 2020
The prohibition on rescission based on the APA makes no sense at all. The original DACA order was itself illegal. The idea that an illegal program can be put in place without going through any administrative process but can not be ended without fully addressing third party claims of harm is ludicrous and is a precedent that will have huge ramifications going forward. This basically lionizes all EOs and EMs as untouchable law now, because you will always have some party claiming harm from the changing of any policy.
Justice Thomas, joined by the three other conservative justices, says he’s mystified by the decision.
More from Justice Thomas: The majority's "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."
— Ed Whelan (@EdWhelanEPPC) June 18, 2020
GP How I love Justice Thomas:
"[T]he majority now requires the rescinding Dept to treat the invalid rule as though it were legitimate. As just explained, such a requirement is not supported by the APA. It is also absurd, as evidenced by its application to DACA in these cases."
— The Gormogons (@Gormogons) June 18, 2020
Yes, technically Trump could now rescind DACA in the way the majority apparently thinks he should have, but the damage is already done. No matter what he does, it will be challenged in court and the case will not even be heard before he’s possibly out of office.
In essence, the Supreme Court was too cowardly to make a decision here, so they found a loophole to punt, knowing that it de facto stops the administration from accomplishing what they wanted to do. It’s judicial activism at its worst and a complete abuse of the court system.
Or, in other words, Obama was above the law, but Trump cannot hold his illegal actions to account unless he goes through a process Obama didn't bother to go through.
— Ben Shapiro (@benshapiro) June 18, 2020
Ben is correct. There are now firmly two different sets of rules for Democrat and Republican presidents. And don’t kid yourself, the moment a Democrat is back in office, he’ll be able to rescind Trump’s EOs and EMs with no issue at all. We now live in a country where the Constitution is a relic. Article II powers do not exist for slightly orange-hued presidents because politicized judges say so by decree.
As someone who soured on the Bush legacy long ago (as I’ve written before, I have family in the Middle East, so my views on the Iraq/Syria conflicts are largely different than many conservatives), perhaps his worst misstep was appointing Roberts to the court. I honestly don’t even think former Justice Kennedy, a noted centrist, would have gone as far as Roberts has gone in the last three days. The current Chief Justice has given up any pretense of originalist thinking and is openly operating as a liberal on the court now.
I’ll leave my colleagues at RedState who have law degrees to wade through the minutiae of this decision, but I trust Justice Thomas on this one. This was a garbage decision that makes no sense whatsoever. Nothing matters anymore. It’s just a free-for-all.