NTF ISSUE PAPER: DACA AMNESTY NOT A DONE DEAL YET

Illegal168.doc. 6-20.
NEBRASKA TAXPAYERS FOR FREEDOM ISSUE PAPER:
DACA AMNESTY NOT A DONE DEAL YET.

BACKGROUND. Conservatives naturally appear alarmed at the 5-4 U.S. Supreme Court decision that allows the Obama Regime Deferred Action for Childhood Arrivals (DACA) program to stand. Created by an Obama executive order, the DACA program offers protection against deportation for about 700,000 illegal aliens smuggled into the U.S. as children by their parents and who then enrolled in the program. However, analysis of this ruling shows that the Court did not conclude DACA a permanent, legal program but only that the majority believed that the Trump Administration did not challenge the program according to proper statute law. Many DACA recipients now are adults, half over age 26 (U.S. Citizenship & Immigration Services data). A substantial number have committed serious crimes like murder and robbery against American citizens, jailed then deported. Att.-Gen. Jeff Sessions rescinded DACA in 2017, beginning a series of liberal lawsuits and lower federal court decisions leading to the Supreme Court agreeing to hear the case.

THE DECISION. The Supreme Court majority ruled that the Administration did not follow federal law when seeking to end the DACA program. Therefore, about 649,000 illegal aliens have won temporary protection from deportation. Chief Justice John Roberts, in his written opinion, sided with 4 liberal justices that the Dept. of Homeland Security (DHS) decision to rescind DACA in 2017 was erroneously done. Translated from legalese, the Trump Administration has legal authority to end DACA, but the way the Administration handled this process violated federal statute. “The dispute before the Court is not whether DHS may rescind DACA. All parties agree that it may. The dispute is instead primarily about the procedure the agency followed in doing so,” Justice Roberts wrote. The process used by the Trump Administration violated the Administrative Procedures Act (APA), which establishes rulemaking procedures for federal agencies. Roberts stressed that the court did “not decide whether DACA and its rescission are sound policies,” signaling that Trump could appeal again. “The wisdom of those decisions is none of our concern,'” Roberts wrote.  He was clear that the Court was not suggesting if DACA was a good or bad policy. “We address only whether the agency complied with the procedural requirement that it provide a reasoned explanation for its action,” he wrote. The Court said, under this domestic law, the Administration must do things a specific way and have specific adequate justifications for its actions, and the Administration did not follow those procedural requirements. The text reads, Had [Acting DHS Secretary Elaine] Duke considered reliance interests, she might, for example, have considered a broader renewal period based on the need for DACA recipients to reorder their affairs. Alternatively, Duke might have considered more accommodating termination dates for recipients caught in the middle of a time-bounded commitment, to allow them to, say, graduate from their course of study, complete their military service, or finish a medical treatment regimen. In September, 2017, Trump announced that he would rescind DACA but gave only 1 reason, that the program was unconstitutional. The Administration offered a second justification for ending the program later, but the court said that reasoning should have applied when the program actually terminated. The Administration unfortunately kept changing its reasoning why DACA merited termination. First, it was because DACA was illegal, then it was because DACA rewarded illegal immigration, later it was because DACA was never a formal decision in the first place, so the Court should not review its repeal.  Therefore, DACA recipients remain in limbo.

THE DISSENT. Court conservatives accused the majority of playing politics by sidestepping what they view as the correct legal result in favor of a ruling that would seem more popular to some. In his dissent, Justice Clarence Thomas described the majority opinion as “mystifying” and argued that the court should have ruled that DACA was illegal instead of extending the legal fight over the program. “In doing so, it has given the green light for future political battles to be fought in this Court rather than where they rightfully belong — the political branches.” Thomas, together with Justices Alito and Gorsuch, agreed with the Administration position that DACA was illegal from the start and stated that, as a result, none of the legal arguments that Chief Justice Roberts discussed were relevant.  Justice Thomas continued that, in a nation of laws, no federal agency should ever need more reason to eliminate an unlawful regulation. The flimsy Roberts rationale, that DHS should have addressed if people relied on DACA, and if there were alternatives to complete repeal of DACA, might seem a fair critique on a job evaluation of DHS staffers, but they provide no basis for ordering the President to enforce a policy that exceeds presidential legal authority (National Review. The Supreme Court Gives Amnesty to Illegal Regulations, June 18, 2020). Justice Brett Kavanaugh wrote a separate dissent, saying that the Court should have considered subsequent Administration rationales and that they, rather than the core illegality argument, provide sufficient reasons for termination of DACA.

TRUMP RESPONSE. President Trump promised not to quit his campaign to end DACA. He still seeks a legal ending of DACA, not a political one, consistent with the rule of law. He pledged to begin the process anew. Furious, Trump called the decision horrible and a shotgun blast into the face of the American people. He promised supporters he would appoint more conservative jurists in the future, stating that we need more conservative justices, or we will lose our 2nd Amendment and other rights like the right to life and religious freedom. Trump plans to release a new list of potential Supreme Court nominees he would consider, if a vacancy occurs. The President, urged on by conservatives, also has another option. He can issue executive orders to terminate DACA.

CONGRESSIONAL REACTION. Conservative senators are angry about this decision and particularly fuming at Chief Justice Roberts. Sen. Tom Cotton (Ark.) accused Roberts of posturing as a “Solomon who will save our institutions from political controversy and accountability.” “If the Chief Justice believes his political judgment is so exquisite, I invite him to resign, travel to Iowa, and get elected. I suspect voters will find his strange views no more compelling than do the principled justices on the Court,” Cotton said. Sen. Ted Cruz (TX.) fulminated against Roberts during his Senate floor speech. “Judging is not a game. It’s not supposed to be a game but sadly over recent years more and more, Chief Justice Roberts has been playing games with the court to achieve the policy outcomes he desires,” Cruz said. Sen. Marco Rubio regretted that the Supreme Court increasingly “appears to be legislating.” “What really troubles a lot of people is that some of the folks that the Republican Party has put on this bench … because they say that they understand that their job is to interpret the law, not to write it, are becoming activists,” Rubio said. “It’s concerning.” Conservative Sen. Josh Hawley (MO) said that it was the “most disappointing week” for the Supreme Court in years. “The problem here is what you’ve essentially done is you’ve said … one administration can put in a set of rules by executive fiat but then another administration … can’t reverse those rules,” Hawley declared. “I’m disappointed with this pattern that we’re seeing,” he added, “This is not a good week for constitutionalists.” Sen. Marsha Blackburn (Tenn.) was among the first congressional Republicans to publicly respond, calling the decision “very disappointing.” Rep. Jim Jordan, (OH.) accused Roberts again of “convoluting the law to appease the D.C. establishment.” “By ruling that President Trump cannot terminate DACA in the same manner that President Obama used to start it, the Court’s decision creates two standards of executive power: one for President Obama and another for President Trump,” he said, “Today’s decision binds the Trump Administration to the politically-expedient policy decisions of President Obama, and hampers efforts to meaningfully restore sanity to our immigration system.” Acting Deputy Homeland Security Secretary Ken Cuccinelli condemned the ruling: “Terrible. Awful. Double-standard. Outrageous.” He then rebuked Roberts. “If Justice Roberts played football, he’d be an all-star punter!” he said.

ROBERTS DISAPPOINTS CONSERVATIVES. Chief Justice Roberts continually has rankled conservatives. Appointed to the Court by Pres. George W. Bush, he joined the liberal wing in 2019, ruling that the Trump Administration did not offer adequate reason for adding a citizenship question to the 2020 census, thus blocking the question and therefore probably allowing hundreds if not thousands of illegal aliens to vote Democrat in the 2020 election. In 2012, he upheld the Obama Regime individual Obama Care mandate by stretching the law to establish it as a “tax,” thus conferring constitutionality upon it.
TAKE ACTION NOW. The decision had a few bright spots. The Court soundly rejected the argument that repealing DACA violates the Constitution. It allowed the Administration to try to repeal DACA again, if it can explain its reasoning better. There are still challenges to DACA working their way through the lower courts, which will likely become strengthened by the Roberts opinion. This decision may appear a victory for DACA, but it is only a temporary win. DACA recipients, labeled Dreamers by their champions, continue to receive federal welfare benefits and take college slots and jobs from Nebraska citizens. If Congress does not decide the DACA question, Pres. Trump can issue an executive order abolishing DACA, as Congress has refused to legalize DACA after Obama established it by executive order. Call the White House hot line at 202-456-1111 to urge the President to ready such executive order, because we cannot expect Congress to act against DACA soon and because a 2nd Administration legal challenge will take time. Concentrate lobbying on Cong. Don Bacon, a DACA enthusiast, to support President Trump on this crucial legislative item.

Research, documentation, and analysis for this issue paper done by Nebraska Taxpayers for Freedom. This material copyrighted by Nebraska Taxpayers for Freedom, with express prior permission granted for its use by other groups in the NE Conservative Coalition Network. 6-20. C