I cautioned you yesterday against reading too much into oral argument as a predictor of how the court will rule in the DACA case, Department of Homeland Security v. Regents of the University of California (three consolidated cases for hearing).

Nevertheless, the current headline at the New York Times reads, Supreme Court Appears Ready to Let Trump End DACA Program (Sigh):


The Supreme Court’s conservative majority on Tuesday appeared ready to side with the Trump administration in its efforts to shut down a program protecting about 700,000 young immigrants known as “Dreamers.”

The court’s liberal justices probed the administration’s justifications for ending the program, expressing skepticism about its rationales for doing so. But other justices indicated that they would not second-guess the administration’s reasoning and, in any event, considered its explanations sufficient.

Amy Howe at SCOTUS blog is more circumspect, Argument analysis: Justices torn, hard to read in challenge to decision to end DACA:

Today the Supreme Court heard oral argument in a set of challenges to the Trump administration’s decision. After roughly 80 minutes of debate in a packed courtroom, before an audience that included politicians and dozens of DACA recipients, it wasn’t clear how the case is likely to turn out. Several justices appeared concerned that the Trump administration’s decision-making process had not adequately considered the effects of rescinding DACA, but on the other hand they weren’t necessarily convinced that sending the case back for a do-over would actually make much of a difference.

The stakes in today’s oral argument were high. Since the policy was announced in 2012, over 700,000 people have obtained protection from deportation under DACA, which permits them to work legally in the United States and also gives them access to benefits like health insurance and driver’s licenses. The challengers in three cases argued together today – originally filed in California, the District of Columbia and New York –  contended that the Trump administration’s decision to end DACA violated the Administrative Procedure Act, which is the federal law governing administrative agencies, and the lower courts ordered the government to keep DACA in place.

But earlier this year the Supreme Court granted the government’s request to weigh in, and now the justices will have the final word. They began this morning by considering a threshold question: whether the government’s decision to end DACA is something that courts can review at all.

Arguing for the federal government, U.S. Solicitor General Noel Francisco urged the justices to stay out of the fray. The administration’s decision to end DACA is not subject to judicial review at all, he suggested, because it simply ended a prior administration’s choice not to enforce immigration policy. Such a choice falls squarely within the agency’s discretion and therefore cannot be second-guessed by the courts, Francisco stressed.

Justice Ruth Bader Ginsburg was skeptical, telling Francisco that there is a “strange element” to his argument. You argue that the decision to end DACA falls within an agency’s discretion, she suggested, but at the same time you are arguing that the government was required to end DACA because the program was illegal, which would not involve any discretion at all.

Justice Samuel Alito was more sympathetic to Francisco’s contention that the decision to rescind DACA is not one that courts can review. When Theodore Olson, who argued on behalf of DACA recipients and civil rights groups, told the justices that they should start with a “strong presumption” that a federal agency’s actions are reviewable, Alito asked Olson how to draw the line in challenges to an agency’s exercise of its discretion. If a law enforcement agency has guidelines for when it will exercise its discretion not to prosecute, Alito asked, is the decision to tighten those guidelines reviewable?

Justice Neil Gorsuch was also concerned about how to draw the line between agency decisions that are and are not reviewable. He acknowledged that he was hearing a “lot of facts” and “they speak to all of us,” but he pressed Olson for a limiting principle.

The second question before the justices was whether the Trump administration’s decision to end DACA violated the law. Here the case is in a somewhat unusual posture, because everyone agrees that the administration could end DACA if it wanted to. As a result, the focus is largely on the process by which the Trump administration reached its decision, rather than the substance of the decision itself. In particular, several justices pressed Francisco on whether, before deciding to end DACA, the government had sufficiently considered the extent to which DACA recipients and others had relied on the program, and they suggested that the court should send the case back for more consideration and a better explanation than the Department of Homeland Security has provided.

As I pointed out yesterday, this argument is directed at Chief Justice John Roberts’s 5-to-4 majority opinion in the census case last year, Department of Commerce v. New York, in which Roberts made clear that the court was addressing process, not substance: “We do not hold that the agency decision here was substantively invalid. But agencies must pursue their goals reasonably. Reasoned decision making under the Administrative Procedure Act calls for an explanation for agency action. What was provided here was more of a distraction.”

Today’s oral argument suggests that the conservative minority is no less opposed to his opinion. The critical question is whether Chief Justice Roberts will apply his opinion in Department of Commerce v. New York to this case, or limit his opinion to the particulars of that case. Justice Roberts is the critical “swing” vote.

Francisco resisted, telling the justices that the decision to rescind DACA would only violate the APA if the government had entirely failed to consider an important aspect of the problem before it – which it had not.

Olson and Michael Mongan, California’s solicitor general, agreed that the case should be sent back. Olson emphasized that the Trump administration did not want to take responsibility for the decision to end DACA, instead wanting to blame it on Congress and the courts. Mongan echoed that idea, arguing that sending the case back would require the Trump administration to issue a new decision that took ownership of the choice to terminate DACA.

But some justices appeared unconvinced that sending the case back to the lower courts would be a good idea or even make a difference. Gorsuch observed that the government could address the interests that would be affected by the termination of DACA in 15 pages, rather than in a paragraph, but it would take six more years, during which DACA recipients would remain in limbo. And Justice Stephen Breyer admonished Mongan that courts should not “play ping-pong with the agency.”

In his rebuttal, Francisco tried to cut off any further discussion about a remand, telling the justices that the government “owns” the decision to end DACA.

As to this final point, the Washington Post captures the true importance of the government’s argument, “The Trump administration told the Supreme Court on Tuesday that it has decided that the program that shields from deportation young undocumented immigrants brought to the United States as children should end regardless of its legality, and that there would be no point in asking it again to come up with additional justifications.” In other words, the rule of law is dead, long live our imperial president who rules by executive fiat! Trump administration tells Supreme Court it owns termination of DACA program:

“We own this,” Solicitor General Noel Francisco told the court during a more than 80-minute oral argument over the Deferred Action for Childhood Arrivals (DACA) program, which President Barack Obama authorized through executive action in 2012 to protect law-abiding immigrants brought to the United States as children.

His arguments seemed to resonate with the court’s dominant conservative [activist] justices.

If you doubt the conservative justices ideological activism, see Supreme Court reporter Dahlia Lithwick’s new piece at Slate, How the Roberts Court Abandoned Bipartisan Consensus: Under the chief justice, 73 decisions have been decided 5–4 along partisan lines. And 73 times, the big Republican donor interest won.

Lower courts have said that President Trump’s decision in 2017 to terminate the program was based on a faulty belief that the program was legally and constitutionally defective and that the administration has failed to provide reasons for ending it that courts and the public can judge.

Francisco disputed that. While the first memo outlining termination of the program relied exclusively on the view that the program was illegal, he said, a subsequent agenda memo invited by a judge during the litigation supplied other reasons. There would be no point in requiring the administration to repeat that step, he said.

* * *

In general, the court’s liberals seemed highly skeptical of the administration’s actions, while the conservatives seemed open to the idea that it had the power to terminate the program.

At one point, she said, Trump told the “dreamers” that “they were safe under him,” she told Francisco. Then, abruptly, the administration said it would be ending the program in a short time, giving them “six months to destroy your lives.”

As the Times reports, “Justice Sonia Sotomayor said the DACA recipients were justified in relying on Mr. Trump’s earlier statements, which she paraphrased. ‘They were safe under him,” she said, “and he would find a way to keep them here.'”

But just this morning, Trump struck a different tone. “Many of the people in DACA, no longer very young, are far from ‘angels,’” he wrote on Twitter. “Some are very tough, hardened criminals.”

WRONG! They would not qualify for the DACA program if they have a criminal record. This white nationalist racist liar views all Latinos as criminals, which is ironic, given his current impeachment for extortion and bribery, and obstruction of justice, all felonies.

Other liberal justices also wondered whether the government has more of a responsibility to say why it was ending a program that, according to dozens of briefs in the case, universities, cities, employers and the recipients themselves have come to rely on.

But Francisco said even Obama described the program as a temporary, “stopgap” measure. Recipients must reapply every two years, he said, or the benefits expire on their own.

Washington lawyer Theodore B. Olson, arguing on behalf of a coalition of businesses, civil rights groups, universities and individuals, said DACA was different from most programs because the government “invited them into the program.” Olson, a former solicitor general under President George W. Bush, said the recipients have identified themselves and made their deportation easier.

Chief Justice John G. Roberts Jr. said deportation was unlikely — has he met Trump’s white nationalist advisor Stephen Miller? — the government wouldn’t have the resources to undertake such a mass action. The real issue, he said, was work authorization.

The Trump administration moved to scuttle the DACA program in 2017 after Texas and other states threatened to sue to force its end. Then-Attorney General Jeff Sessions advised the Department of Homeland Security that the program was probably unlawful and that it could not be defended.

Sessions based that decision on a ruling by the U.S. Court of Appeals for the 5th Circuit, which said that another Obama program [DAPA] protecting immigrant parents was beyond the president’s constitutional powers. The Supreme Court deadlocked 4 to 4 in 2016 when considering the issue [which allowed the 5th Circuit opinion to stand].

Lower courts have ruled that the two programs differed in important aspects, undermining the administration’s legal analysis.

Olson said that advice from Sessions gave the department no other option but to end the program. The court should require the administration to start over and give reasoned arguments for why it is in the country’s best interests to end the program.

But Justice Neil Gorsuch, who said the “sympathetic facts” about DACA recipients “speak to all of us,” wondered what would be the point. “What more would you have the government say?” he asked Olson.

Justice Brett Kavanaugh also said a subsequent memo from then-DHS Secretary Kirstjen Nielsen seemed to list reasons other than Sessions’s view that the program was illegal.

But Justices Elena Kagan and Ruth Bader Ginsburg said the presumption about the program’s illegality provided the backdrop for all of the administration’s actions.

Lower courts rejected Sessions’s view. They have kept the program in place, restricting new applicants but allowing those already enrolled to renew their participation. California Attorney General Xavier Becerra (D), who is among those fighting the administration’s decision, said that about 400,000 two-year renewals have been approved since January 2018.

* * *

The Supreme Court’s somewhat reluctant review of the DACA program — it waited for months before accepting the case — meant that, for the third consecutive year, the high court will pass judgment on a Trump priority that has been stifled by federal judges, this time in a presidential election year and in a case with passionate advocates and huge consequences.

The court’s decision is likely to take months, and will be announced in the middle of the presidential primaries, quite possibly only weeks before the political parties’ national conventions in July.