Thursday, June 18, 2020

SCOTUS ruling on Dreamers policy is bureautocracy at its worst

The United States of America was never a Democracy and it's clear now that we're on the verge of no longer being a Republic. In a 5-4 decision, the United States Supreme Court ruled not that Congress alone has the power to make immigration policy. It ruled not on the constitutionality of Barack Obama's usurpation of that enumerated Congressional power by creating the Deferred Action on Childhood Arrivals. Nor did it rule that his administration violated the Administrative Procedures Act by ramming it through. No, the Court has ruled that the Trump administration violated the APA not by rescinding an unconstitutional executive action, but by not following the "rules" when it did so.

This is like recognizing that the guy you replaced at the widget factory made left-handed gadgets instead of right-handed gadgets, and broke company policy by doing it without permission.  When you restored harmony by resuming the production of right-handed gadgets, the lovers of the left-handed gadget flavor protested that you didn't have permission to change the flavor, and today the allegedly objective ombudsman agreed with the idiots.


Justice Clarence Thomas wrote a dissent that should have been the majority opinion. 

"Without grounding its position in either the APA or precedent, the majority declares that DHS was required to overlook DACA’s obvious legal deficiencies and provide additional policy reasons and justifications before restoring the rule of law. This holding is incorrect, and it will hamstring all future agency attempts to undo actions that exceed statutory authority. I would therefore reverse the judgments below and remand with instructions to dissolve the nationwide injunctions.”

"Today’s decision must be recognized for what it is: an effort to avoid a politically controversial but legally correct decision. The Court could have made clear that the solution respondents seek must come from the Legislative Branch. Instead, the majority has decided to prolong DHS’ initial overreach by providing a stopgap measure of its own. 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. Such 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.

"Perhaps even more unfortunately, the majority’s holding creates perverse incentives, particularly for outgoing administrations. Under the auspices of today’s decision, administrations can bind their successors by unlawfully adopting significant legal changes through Executive Branch agency memoranda. Even if the agency lacked authority to effectuate the changes, the changes cannot be undone by the same agency in a successor administration unless the successor provides sufficient policy justifications to the satisfaction of this Court. In other words, the majority erroneously holds that the agency is not only permitted, but required, to continue administering unlawful programs that it inherited from a previous administration. I respectfully dissent in part."

This decision also exposes a flaw in the conservative approach to leftist encroachment on constitutional liberty and separation of power. Conservatives have believed that plain reading of the Constitution should be enough to decide whether executive action is lawful and permissible. The left has used the APA as a shield to deflect such a plain reading test. Conservatives should use some political  jujitsu to seize that shield and use it to pummel future executive overreach. Obama's DACA order also violated APA, but no one ever made a case for overturning it on that basis. 


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