As soon as Friday, the Supreme Court could announce that it will review three lower court orders holding that the Trump administration acted unlawfully when it ended the Obama-era Deferred Action for Childhood Arrivals (DACA) program, which allows about 700,000 undocumented immigrants to live and work in the United States.
On the surface, these cases appear to be epic showdowns over presidential power — and over how much mercy the executive may show to undocumented people who entered the United States as children. Dig just one level below the surface, however, and they become something much less dramatic. The real issue in these cases is whether the Trump administration has to follow very basic instructions — or whether it can go running off to the Supreme Court every time it refuses to correct an incomplete homework assignment.
The dog ate Trump’s homework
Let’s start with a premise with which no one — or, at least, no court that has previously considered Trump’s effort to rescind DACA — appears to disagree: The Trump administration has the power to end DACA.
They could do it tomorrow if they wanted to, and none of the court orders leaving DACA in place would prevent them from doing so. Indeed, the federal judge who wrote the Vidal opinion literally wrote the words “defendants indisputably can end the DACA program” in the introduction to his opinion.
These cases are not before the Supreme Court because there is a real dispute over the scope of presidential power. They are before the Supreme Court because the Trump administration is either too stupid or too ornery to write a brief memo explaining itself.
So why are we even having this fight?
As of this writing, federal trial judges in Brooklyn and Washington, D.C., plus the United States Court of Appeals for the Ninth Circuit, all held that Trump’s Department of Homeland Security acted unlawfully when it announced that it would wind down the DACA program. Yet the basis for their opinions is exceedingly narrow.
When a federal agency implements a new policy, a law called the Administrative Procedure Act typically requires the agency to explain why it did so. In these cases, the Trump administration claimed that it ended DACA because it believes that the DACA program is illegal.
As Judge John Bates, a highly regarded George W. Bush appointee in D.C., explained in his NAACP decision, if the Trump administration had given a policy-based explanation for its decision to end DACA, that explanation would be “preemptively unreviewable” by federal courts. If an agency concludes that a program like DACA is illegal, by contrast, courts may review that determination and decide for themselves if the program is legal.
Thus, all that the Trump administration needs to do to immunize its policy decision from judicial review is issue a new memo saying that they are ending DACA for a policy-related reason. Indeed, in his own decisions in the NAACP case, Judge Bates practically begged the administration to do so.
Last April, Bates handed down an opinion explaining the distinction between a policy-based justification for ending DACA and a legal-based justification. Though Bates concluded that “DACA’s rescission was unlawful and must be set aside,” he also stayed his order for 90 days. The Trump administration could have spent those 90 days drafting a memo articulating a policy-based reason for ending DACA. Instead, it merely issued a new memo fleshing out its legal arguments.
In August, Bates reacted to this new memo incredulously. “The Court has already once given [the Department of Homeland Security] the opportunity to remedy” the deficiencies laid out in the April order, Bates wrote, “either by providing a coherent explanation of its legal opinion or by reissuing its decision for bona fide policy reasons that would preclude judicial review — so it will not do so again.”
DACA is still in effect, in other words, because the Trump administration refused to write a term paper on the right topic.
So what’s actually going on here?
It’s tempting to chalk this series of events up to incompetence — and that explanation can never be ruled out so long as Donald Trump occupies the White House.
Yet, as much as Trump is prone to appoint goonish dolts to top government jobs, his legal operation is staffed by some of the smartest conservative ideologues in the country. Trump’s judicial nominees would be some of the most highly qualified individuals ever appointed to the federal bench, if so many of them didn’t have political views that place them slightly to the right of Attila the Hun. His solicitor general, Noel Francisco, is one of the most accomplished Supreme Court advocates in the country, even if Francisco typically uses his superpowers to serve the Legion of Doom.
So it’s unlikely that the Trump administration refused to correct its DACA memo due to a lack of competent legal advice, and much more likely that they are intentionally keeping DACA alive for some other reason.
In 2016, when the Supreme Court had only eight justices, it split 4-4 on whether a program similar to DACA is legal. Nearly three years later, the Court’s empty seat is occupied by one of the most conservative judges to sit on the Court since the Roosevelt administration. And the relatively moderate conservative Justice Anthony Kennedy gave up his seat so Trump could appoint another hardliner.
The Trump administration, in other words, could end DACA today if it simply turned in its homework assignment. But if it manufactures a fake controversy over the legality of DACA, it probably could convince five members of the Court to strike the program down permanently. That would mean that future Democratic presidents would be unable to revive DACA once they take office.
The question is whether the Supreme Court will allow itself to be used as a pawn in this matter. Under the Court’s rules, it typically hears cases that present “an important question of federal law that has not been, but should be, settled by this Court.” But the real legal question before the Supreme Court isn’t a nation-defining showdown over the role of the executive branch. It’s a very basic question about whether the Trump administration needs to jump through some simple procedural hoops before it can implement a new policy.
If the Court allows itself to be manipulated into deciding the DACA cases, it will send a clear signal to this administration to engage in more shenanigans in order to dragoon the Court into political disputes.