Lawyers trying to save an Obama-era program that defers the deportation of certain undocumented young adults are strategically directing their arguments to one man: Chief Justice John Roberts.
They have found ammunition in his own words, from a Supreme Court ruling last June, when he sided with the court’s four liberals to cast the decisive vote against the Trump administration plan to add a citizenship question to the 2020 census.
Lifting a page from Roberts’ decision ripping apart the justification for the census question, the new challengers suggest the administration’s reasons for rescinding the Deferred Action for Childhood Arrivals program are not “true” or “genuine.” Instead, they argue, using language from the census case, the reasons were “pretextual” and would require the justices “to exhibit a naiveté” to buy what the administration is selling.
Their moves in the case to be heard Tuesday are subtle, not brazen. Yet the message is clear, and Trump administration lawyers recently shot back in their final brief that “there is no basis” for the justices to believe “the reasons offered … were pretextual.”
Roberts has signaled an interest in flouting predictions of a partisan split on a bench composed of five Republican-appointed conservatives and four Democratic-appointed liberals in an increasingly polarized America.
Advocates for DACA must shatter that familiar ideological division if they are to win at least a fifth vote in the case, which would affect around 700,000 young immigrants trying to stay in the US.
It’s an uphill battle. Roberts sits at the helm of a conservative court and his broader record over the years would suggest sympathy to the Trump administration’s efforts on immigration. Further, when the court heard a related dispute in 2016 – over undocumented immigrants who were parents of US citizens – Roberts was demonstrably skeptical of a plan by then-President Barack Obama to postpone their deportation.
The new case arises from President Donald Trump’s broad-scale moves to stanch immigration, from the proposed wall at America’s southern border to heightened restrictions on people seeking asylum to increased arrests and swifter deportations.
The extreme political consequences of any DACA ruling add to the pressure on Roberts, given his conflicts with Trump and the timing in the middle of a presidential election.
The chief justice, appointed by Republican President George W. Bush in 2005, has generally deferred to administration initiatives, and he authored the 2017 decision upholding the third version of the Trump travel ban, which was decided along familiar 5-4 lines.
In its defense, the Trump administration is using different language from the census ruling that its lawyers think will appeal to the chief justice’s inclination to defer to the executive branch.
Last Supreme Court session, in the months before he surprisingly ruled against the citizenship question on the 2020 census, Roberts laid down multiple markers trying to demonstrate the justices’ independence from presidential politics.
The most notable instance occurred after a lower court judge in California had preliminarily ruled against a Trump asylum policy and the President derided him as an “Obama judge.” Roberts issued a statement that said, “We do not have Obama judges or Trump judges, Bush judges or Clinton judges. What we have is an extraordinary group of dedicated judges doing their level best to do equal right to those appearing before them.”
Trump fired back on Twitter, saying, “Sorry Chief Justice Roberts, but you do indeed have ‘Obama judges,’ and they have a much different point of view than the people who are charged with the safety of our country.” In a subsequent tweet, Trump, who had harshly criticized Roberts in 2012 when he voted to uphold the Obama-sponsored Affordable Care Act, added of the immigration scene, ” We need protection and security – these rulings are making our country unsafe! Very dangerous and unwise!”
Irrespective of whether they can entice Roberts’ vote, lawyers defending DACA are not foreclosing other possibilities among the justices, including Trump’s most recent appointee, Justice Brett Kavanaugh.
Echoes of 2020 census case
The case before the justices will not test the constitutionality of the Obama-era program to protect undocumented immigrants who came to the US as children from deportation but rather the way in which Trump administration officials proceeded to dismantle it.
The key legal issue is whether the Department of Homeland Security met procedural requirements when it announced in 2017 that it would end DACA. Because the dispute centers on the Administrative Procedure Act, which prohibits agencies from acting in an “arbitrary” or “capricious” manner as they change policy, the new case directly brings to the fore the issues raised over the citizenship question on the census.
Roberts authored the opinion rejecting addition of the citizenship query, which opponents said would drive down responses in minority communities, which tend to vote Democratic. Commerce Secretary Wilbur Ross said the question was needed to help the Department of Justice enforce the 1965 Voting Rights Act. Roberts concluded Ross had contrived the justification.
Those challenging the Trump administration on DACA similarly say the administration is not being straightforward. The consolidated cases were brought by California, New York and other Democratic-led states, along with the Regents of the University of California and immigrant rights groups.
Theodore Olson, an eminent conservative lawyer representing young people who have benefited from the DACA program, acknowledges that the administration would have authority to rescind DACA but says the move must be accompanied by “reasoned decisionmaking.”
“DACA recipients, their communities, and the public deserve a reasoned explanation for the government’s decision supported by a complete administrative record,” wrote Olson in a court filing. “They did not receive one.”
Olson also plucked one of the most memorable lines from Roberts’ census case opinion as he asserted that the administration had acted as if the DHS policy change would not hurt DACA recipients in the workforce or reverberate nationwide: “This Court is ‘not required to exhibit (such) naiveté.’”
Lawyer Robert Long, taking the lead for the Regents of the University of California, cited Roberts’ census opinion as he referred to “disturbing indications that the government’s stated reasons for rescinding DACA are not the true reasons for its decision.”
For example, he wrote, “when Attorney General Sessions announced the rescission, he said that DACA denies Americans jobs and contributes to crime. These rationales were not included in the Duke Memorandum, and there is no support for them in the administrative record. Indeed, DACA participants are required as a condition of the policy not to have committed any serious crime.”
As US Solicitor General Noel Francisco countered those arguments in his filings, he similarly selected lines from Roberts’ census opinion, in the case of Department of Commerce v. New York. He said agency officials have wide latitude to make policy choices, as long as they have “examined the relevant data” and provided “a rational connection between the facts found and the choice made.
“DHS’s decision here easily passes that test on multiple legal and policy grounds,” Francisco wrote, adding in his final, October 28 filing, that “there is no basis to think that the reasons offered by either Secretary were pretextual.”
How the DACA decision happened
The DACA wind-down was announced in September 2017. Elaine Duke, then the acting secretary at the Department of Homeland Security, took her lead from Attorney General Jeff Sessions, who had said DACA was unlawfully instituted and would likely be struck down by federal courts.
Duke noted that lower courts had previously cast doubt on the lawfulness of a related program, Deferred Action for Parents of Americans and Lawful Permanent Residents. Lower court judges had blocked implementation of DAPA, suggesting Obama had exceeded his authority when he proposed suspending deportation for certain parents without papers. But judges had not ruled on the constitutional merits of the challenge brought by Texas and other Republican-led states, and Supreme Court justices deadlocked when the dispute reached them.
When Kirstjen Nielsen took over as Homeland Security secretary later that year, she reinforced the Duke memo and said that she similarly lacked sufficient confidence in DACA’s legality to enforce it. She added additional ground, including that she believed any broadscale deferral of deportation should be a matter for Congress, not an agency.
In 2016, when the Supreme Court considered the DAPA case, Roberts pounded the Obama administration lawyer at the lectern with questions and declared the deferral policy “a fairly significant departure” from past executive branch practice. Roberts suggested the rationale put forward by the Obama administration would allow a president to defer deportation for a wide range of undocumented immigrants.
At the time, two months after the February 2016 death of Justice Antonin Scalia, the court had only eight members. It ended up deadlocking, 4-4, in the case of United States v. Texas. That meant no national policy was set but that a preliminary decision of the 5th US Circuit Court of Appeals, preventing the DAPA program from implementation, was affirmed.
The Supreme Court continued to operate with only eight justices for a year. When Trump came to office, he appointed Neil Gorsuch, to succeed Scalia, in 2017, and then Kavanaugh, to succeed Justice Anthony Kennedy, who retired in 2018.
Those Trump appointees have deep conservative records and may be inclined to uphold the Trump administration effort to dissolve DACA. Unlike the rest of their colleagues, they were not heard in the 2016 DAPA case.
The Kavanaugh pitch
Perhaps to entice Kavanaugh, lawyer Olson cites a 2014 Kavanaugh opinion from his tenure on a lower appeals court as Olson argues the Department of Homeland Security failed to weigh the potential costs of dissolving DACA.
The Kavanaugh opinion, written in dissent in an environmental case, rejected what he described as a “cost-blind approach” to an air-quality program.
Kavanaugh wrote that agencies should take both benefits and costs into account before making a policy decision. “That’s just common sense and sound government practice,” he said in the 2014 case.
With a nod to that prior Kavanaugh position, Olson argues the administration failed to consider any of the potential hardships to DACA recipients or costs to the country if the deferred-action policy ended.
“Data from shortly before Secretary Duke’s memorandum showed that over 90 percent of DACA recipients were then-employed,” Olson wrote in his brief. “And research from 2017 estimated that ending DACA would cost the federal government $60 billion in lost revenue and eliminate $215 billion from the economy in lost GDP.”
Solicitor General Francisco responded by writing that a cost analysis “would serve little purpose where, as here, the relevant costs of maintaining the policy were not only monetary, but the damage to public confidence in DHS and in the rule of law, as well as the potential distraction from the agency’s important work.”
Overall, Francisco argued that the administration “seeks to send a strong, consistent message that illegal immigration will not be tolerated. Policies like DACA plainly undermine the clarity of that message.”