Category: reason

I have been writing about DACA since I began teaching in 2012. For nearly eight years, I have had to explain a single fact over and over and over again: the deferred action policies were unlawful because they conferred federal benefits; not because they deferred deportations. Early on in the DAPA litigation, Texas conceded that DHS could issue “do not deport” cards. Texas’s objection concerned the fact that DACA, and later DAPA, allowed the federal government to grant a host of federal benefits, such as work authorization.

Yet, this simple fact has always been ignored–with good reason. It is far more powerful to raise the specter of deporting Dreamers, then merely taking away their work authorization. Most Dreamers were never a priority for removal. As we are often reminded, the federal government can only deport about 400,000 a year. DACA was always about granting the Dreamers work authorization.

Over the past five years, I have filed several briefs on behalf of the Cato Institute drawing this distinction: DHS had the authority to defer the deportations, but not to grant the benefits. (See pp. 18-21 of our Supreme Court brief). And this argument has consistently fallen on deaf ears.

Now, the most unlikely candidate has breathed life into our position: Chief Justice Roberts. He recognized that the benefits element of DACA was separate from forbearance of removal. And he did not agree with the 2nd, 9th, and D.C. Circuits that the conferral of these benefits was lawful. Instead, he seemed to agree with the 5th Circuit that the conferral of benefits was unlawful. (More on that point later).

But then we get the John Roberts special: because the forbearance of removal provision was permissible, the Secretary acted arbitrarily and capriciously for rescinding the entire DACA policy. In effect, Roberts applied a severability analysis: the unlawful portion of DACA (conferral of benefits) should have been severed from the permissible portion (forbearance). And because the Secretary did not sever the DACA memo appropriately, the entire rescission was unlawful. (If this sort of analysis is applied to the ACA case, Congress’s failure to properly repeal the individual mandate would render all of Obamacare unconstitutional–mostly joking.)

The Chief’s standard exceeds even the strictest scrutiny I have seen in equal protection cases. Every government gets some degree of latitude, even when dealing with fundamental or enumerated rights. But the failure to adopt the precise legal analysis Chief Justice Roberts adopted, which had been heretofore unknown, renders the policy arbitrary and capricious. We saw a similar mode of analysis last year in the Census case. But here, the A&C standard was upgraded to an electron microscope–a single molecule out of place, and the Chief orders a remand.

I will write a subsequent post that analyzes these points in some detail. But this post should provide a high-level overview of my thoughts.

from Latest – Reason.com https://ift.tt/2AOcYxi
via IFTTT

A very detailed and thoughtful item by Profs. Jack Goldsmith & Marty Lederman at Just Security; it’s a factually and legally complicated area, which I don’t know enough about, but on which they are experts. An excerpt from the opening:

The U.S. government filed a civil suit on June 17 against former National Security Advisor John Bolton.  It primarily seeks (i) an injunction against the planned June 23 publication of Bolton’s book, The Room Where it Happened: A White House Memoir; and (ii) a “constructive trust” that would give the United States the right to all of Bolton’s profits from the book.  The case has been assigned to Judge Royce Lamberth of the U.S. District Court for the District of Columbia.

This post explains the case and offers our initial thoughts.  The big news to us about the government’s case is that it’s weaker than we expected.  We should emphasize, however, that these views are preliminary and incomplete.  The case implicates a complex and in some ways unsettled area of law.  [UPDATE: Less than an hour after we published this post, the government filed a motion for Judge Lamberth to issue a Temporary Restraining Order–one that would prohibit not only Bolton himself, but also Simon & Schuster and “[c]ommercial resellers further down the distribution chain, such as booksellers,” from selling or distributing The Room Where it Happened.  The classified and unclassified declarations filed with that motion might (or might not) affect the outcome of the case.  We hope to discuss this important development in a follow-up post soon.]

The Relevant Contract (Nondisclosure Agreement) Terms

The most important thing to understand about the case is that the government is suing Bolton for a breach of contract—two contracts, in fact.  As the government’s complaint describes, the contracts in question are “nondisclosure agreements” (NDAs) that Bolton signed on April 5, 2018, when he entered government service as National Security Advisor.  These NDAs are included as attachments to the complaint….

The first NDA, Standard Form 312, contains obligations Bolton assumed as a condition of obtaining access to classified information generally, i.e., a “security clearance.”  Two are pertinent here.  First, Bolton agreed that he must never “divulge classified information to anyone” unless he either “officially verifies] that the recipient has been properly authorized by the United States Government to receive it” or he’s received “prior written notice of authorization [to divulge it] from the United States Government” entity responsible for its classification.  Second, he agreed that if he’s “uncertain about the classification status” of any information, he must “confirm from an authorized official that the information is unclassified before [he] may disclose it” to anyone not authorized to receive it.  We’ll refer to this second obligation as the SF-312 prepublication review requirement, although, as we explain below, it’s actually something less than that—it’s more like a simple “confirmation” requirement.

The second NDA, Standard Form 4414, set the conditions of Bolton’s access to a more sensitive subset of “Special Access Programs” classified information, commonly known as Sensitive Compartmented Information (SCI).  It requires Bolton to submit to a security review by the National Security Council (NSC) “any writing . . . that contains or purports to contain any SCI or description of activities that produce or relate to SCI or that I have reason to believe are derived from SCI, that I contemplate disclosing to any person not authorized to have access to SCI or that I have prepared for public disclosure.”  It further provides that he “will not disclose the contents of such preparation with, or show it to, anyone who is not authorized to have access to SCI until I have received written authorization from the Department or Agency that last authorized my access to SCI that such disclosure is permitted.”  We’ll call this the SF-4414 prepublication review requirement….

from Latest – Reason.com https://ift.tt/2N96Wdb
via IFTTT

Rather than securing a better trade agreement for American farmers and blue-collar workers, the real goal of President Donald Trump’s trade war with China was a second term in the White House. So says John Bolton, Trump’s former national security advisor, in a Wall Street Journal excerpt from his forthcoming book, The Room Where It Happened.

Bolton writes that he would be “hard-pressed to identify any significant Trump decision” that wasn’t driven by the president’s re-election plans. But Bolton singles out Trump’s fraught and sometimes frothy relationship with Chinese President Xi Jinping as a particularly striking example of how Trump “commingled the personal and the national.”

Bolton relates the details of a conversation Trump had with Xi by phone in June 2019, in which Trump stressed that “making a trade deal with China” would be “a big plus for him politically.” In a separate conversation between the two men months later, Bolton writes, Trump “stressed the importance of farmers and increased Chinese purchases of soybeans and wheat in the electoral outcome.” He adds that he would use the exact words uttered by Trump, “but the government’s prepublication review process has decided otherwise.”

Later in the summer, as China was cracking down on protesters in Hong Kong and as the 30th anniversary of the Tiananmen Square massacre approached, Bolton reportedly tried to persuade Trump to speak out about China’s terrible human rights record. “Who cares about it? I’m trying to make a deal,” was Trump’s response, Bolton writes.

Bolton was fired from the White House in September of last year, so he wasn’t around to witness the final stages of what became a limited “phase one” trade deal signed by Trump and Xi in December. But it seemed apparent to many observers—myself included—that the deal had more to do with domestic politics than it did with boosting international trade or easing tensions between the world’s two biggest economies.

For starters, there was the promise that China would increase its purchases of American farm and industrial goods by $200 billion. Those targets were never realistic—and indeed, China is not even close to being on pace to hit them. But the key thing, politically, is that the U.S. agreed not to hold China accountable until 2021 at the earliest. In other words, not until after the 2020 presidential election.

That meant Trump could hit the rally circuit to boast about how he had stood up to China—as he quickly did, telling a gathering of Ohio farmers in January that they’d have to buy bigger tractors to keep up with the demand from China under the deal he’d inked.

In that regard, Bolton’s descriptions of Trump’s priorities seem to fit what we know perfectly. Rather than getting tough on China, Trump appears to care far more about the appearance of getting tough with China than actually accomplishing substantial policy.

That’s been fairly obvious to anyone who cared to look. After all, how many economists and journalists have debunked Trump’s claim that China is paying for the cost of his tariffs, or pointed out that trade deficits don’t work the way Trump seems to think they do? But the tariffs were a useful way to appear to be doing something. From the outside, Trump’s trade policy has looked like a haphazard, self-interested mess from the start; Bolton confirms that’s how it looked inside the White House too.

“Trade matters were handled from day one in a completely chaotic way,” Bolton writes in the Journal excerpt. “Over and over again, the same issues. Without resolution, or even worse, one outcome one day and a contrary outcome a few days later.”

“The whole thing made my head hurt,” Bolton concludes.

Mine too.

from Latest – Reason.com https://ift.tt/2zINK2O
via IFTTT

When President Donald Trump was asked in April if it was appropriate for large companies and institutions like Harvard to receive funds from coronavirus relief bills, he responded by insisting that he, at least, hadn’t benefited. “Well, I know one thing: I didn’t get any. That’s for sure. I didn’t get any,” he said.

Members of Congress appear to be a different story.

At least four representatives—two Republicans and two Democrats—have what Politico describes as “close ties” to businesses that have received federal relief funds, meaning that the companies are run by or employ members of their families. As Politico notes, there are likely more beneficiaries in Congress, but a lack of transparency in how the funds are being disbursed makes it impossible to know for sure.

The package of coronavirus relief bills passed earlier this year calls for nearly $3 trillion in federal spending, hundreds of billions of it in the form of loans to businesses harmed by the virus and the lockdowns. Those loans, which can amount to millions of dollars per beneficiary, are better understood as grants: They are fully forgivable provided they are used according to federal directives. But despite the administration’s promises to identify grantees, many of the details remain shrouded in secrecy.

The federal government is spending vast sums of money on propping up businesses affected by the pandemic, but it isn’t being forthcoming about who or what it’s being spent on. On nearly every front, oversight of coronavirus relief spending has been a mess.

Treasury Secretary Steve Mnuchin has defended the lack of transparency, saying that releasing the loans’ amounts and beneficiaries would reveal proprietary business information. The loan amounts are based on payroll spending, meaning they could theoretically reveal private financial data about small business operations to competitors. But there are ways around this. As John Cassidy writes at The New Yorker, the administration could list recipients along with funding ranges rather than exact loan amounts. 

Many Republicans have resisted efforts to require disclosure for larger recipients as well. A House bill would have required disclosures for all loans over $2 million; although some Republicans voted in favor, 146 GOP representatives voted against it, causing the bill to narrowly fail.  

Meanwhile, as Bloomberg reports, the oversight efforts that were put in place are still struggling to come together. There are at least three oversight bodies, each facing staff and managerial issues. Brian Miller, a White House lawyer who the president picked to be special inspector general for pandemic recovery, wasn’t sworn in until June 5. The Congressional Oversight Commission, meanwhile, requires bipartisan support for its leadership position; so far, no chairman has been announced. And in April, Trump kept Pentagon inspector general Glenn Fine from leading the Pandemic Response Accountability Committee, a multi-agency group of inspectors general who were also tasked with keeping tabs on federal spending. 

That group released an initial report this week warning that loan efforts were subject to fraud and abuse. Some of that may already be happening: In May, the Department of Justice charged an Atlanta-area reality star with fraudulently using a $2 million loan, backed by federal relief funds, to buy jewelry and pay child support. The loan was intended to support jobs at a trucking firm. 

It’s sadly predictable that the largest emergency spending program in modern U.S. history would be difficult to track and would prove susceptible to fraud and abuse. Just as predictable: The Trump administration appears poised to ask for even more. 

Peter Navarro, a top White House economic adviser, recently said the administration is looking to hand out another $2 trillion. Although it’s not clear whether the rest of the administration agrees with Navarro’s precise ask, it seems reasonably likely that at least one more massive spending bill will come down the line this summer. Before the federal government ponies up another trillion or two, it would be nice to have a better idea about the first $3 trillion was spent.

from Latest – Reason.com https://ift.tt/2APxzRJ
via IFTTT

In New York City, where I live, clothing stores have reopened, but with a hitch: You can’t browse the aisles freely or try on anything, but the clerks can bring whatever you ordered online out to you, via “curbside service.” Hallelujah.

The last time I encountered something so restrictive, limiting, and stupid was when I lived in Philadelphia in the 1980s and had to shop at the state-owned stores that had a monopoly on alcohol sales. A few of the bigger stores let you walk the aisles, but most had a counter up front and a massive catalog from which you had to choose your preferred poison. The salesperson would then head back to the storeroom and bring your order out to you. This was true even for the $2.99 and $3.99 bottles of Yugoslavian wine I could afford at the time, and I remember wasting everyone’s time by sending people back in search of the cheapest plonk imported from the one semi-functioning economy in communist Europe. I’ll take a bottle of the merlot, I’d say, counting out my change to make sure I could cover the sales tax. After a few minutes of rummaging around in the back, they’d reappear and say nope, we’re out of that. How about the cabernet, then? More time. Nope. The blend? Nope. OK, then maybe any of the whites? On and on it would go.

Something similarly cramped and frustrating is happening to free speech. Acceptable expression is being squeezed into smaller and smaller confines, even as we have the infinite horizons of cyberspace open before us. I guess it’s good news that it’s not the government per se that’s doing the policing (yet, at least). Twitter, YouTube, Facebook, Patreon, and other private services have been bouncing more and more people off their platforms for real and imagined crimes. The legacy media seems to spend more time conducting struggle sessions than reporting these days. The New York Times canned their op-ed page editor for running a stupid column by a well-educated but stupid senator who himself wants to limit important aspects of online expression. The Philadelpia Inquirer pushed out its editor over a headline that offended people (“Buildings Matter, Too”).

As a good libertarian, I rush to add that of course these outlets have every right to block whomever they want and to fire every at-will employee in their midst. And demonetizing isn’t the same as banning. But you know what? It’s a bad sign when people get worried that anything they say (or have ever said) can and will be used against them, either in a court of law or, more likely, the court of public opinion. “Name ONE non-trash aspect about this country,” asks professional troll Saira Rao, who makes a good living charging “wealthy white women” $2,500 a pop to eat pasta and confess their privilege. I’ll go with a longstanding belief in a robust marketplace of ideas and, at least since the late 1950s, a willingness to beat down legal and social limits on acceptable speech and expression (thank you, Lawrence Ferlinghetti, Allen Ginsberg, Barney Rosset, and so many others). When space for speech was limited and at a premium, we took it more seriously and fought for it to be accessible even or especially to the outliers of the world.

Yesterday’s false flap about Google “demonetizing” The Federalist falls into the broad and emerging genre of policing speech through any means necessary, where all it takes to grab headlines and cause a panic is to allege that a website’s comments section, moderated or not, is hosting a racist hootenany. So does the characterization of Facebook as a “hate-for-profit” operation whose primary purpose is serving up ads for white supremacists. A wide-ranging association of civil rights groups is calling on advertisers to boycott Facebook to “protest what they say is the company’s failure to make its platform a less-hostile place,” reports The Wall Street Journal. Perhaps Mark Zuckerberg’s real sin is his recent conversion to something approaching free-speech values. Just a couple of years ago, the boy genius arrived in D.C. announcing that he wanted to be regulated by a drool brigade that clearly had no understanding of how Facebook or the internet worked. Last fall, having apparently discovered that Congress doesn’t respect the First Amendment, he announced the bold position that Facebook wouldn’t ban political speech and ads and wouldn’t censor politicians. That’s upsetting to people who want to control speech even as Facebook itself has its own limits. Earlier today, for instance, the platform took down a Donald Trump ad, with a Facebook spokesman saying it violated “our policy against organized hate” by including a red triangle in its imagery that some likened to Nazi designations of political dissidents (the president’s team avers that the triangle is “a symbol widely used by Antifa”).

In a widely discussed recent article for New York, Andrew Sullivan asked, “Is There Still Room for Debate?” Surveying various recent shouting matches, calls for “moral clarity” in journalism, and figurative beatdowns for wrongspeak, Sullivan defends pluralism and free expression as something more than a legal system:

Liberalism is not just a set of rules. There’s a spirit to it. A spirit that believes that there are whole spheres of human life that lie beyond ideology—friendship, art, love, sex, scholarship, family. A spirit that seeks not to impose orthodoxy but to open up the possibilities of the human mind and soul. A spirit that seeks moral clarity but understands that this is very hard, that life and history are complex, and it is this complexity that a truly liberal society seeks to understand if it wants to advance. It is a spirit that deals with an argument—and not a person—and that counters that argument with logic, not abuse. It’s a spirit that allows for various ideas to clash and evolve, and treats citizens as equal, regardless of their race, rather than insisting on equity for designated racial groups. It’s a spirit that delights sometimes in being wrong because it offers an opportunity to figure out what’s right. And it’s generous, humorous, and graceful in its love of argument and debate. It gives you space to think and reflect and deliberate.

The current online landscape, concludes Sullivan, is “the antithesis of all this—and its mercy-free, moblike qualities when combined with a moral panic are, quite frankly, terrifying.”

Yes, only the government can censor speech, if you use the strictest definition of censorship. But that’s a narrow, impoverished, and flatly wrong way to think about free expression. Governments have less power than ever to keep us from talking freely among ourselves, and traditional cultural, religious, and media gatekeepers exert less and less control too, thanks be to the internet and other forces. More different voices and perspectives are being heard than at any time in my lifetime, even as (or maybe because) different factions are trying to shut down speech and ideas they don’t like. Especially in a moment when Donald Trump, Joe Biden, Elizabeth Warren, and Josh Hawley are all calling for major changes to Section 230 of the Communications Decency Act, we need to be on high alert for attempts by the government to suppress speech. But we also need to battle attempts by online platforms and interest groups and individuals to shut down speech and thought in less-legalistic ways. There is only ever as much room for debate as we insist on.

More than ever, we need to promote what Greg Lukianoff has called a “culture of free speech,” in which we all fight like hell for our visions of the good society to carry the day while recognizing the need and even the duty of protecting the expression of those with whom we disagree. With all its strictures and claustrophobia, curbside service is terrible enough when it comes to shopping for clothes and booze. It’s far, far worse if we lock down our minds as well.

from Latest – Reason.com https://ift.tt/3fE5yeU
via IFTTT

 

Today’s Supreme Court ruling is a victory for DACA recipients, but a very limited one. The Supreme Court correctly concluded that the Trump administration’s shoddy rationale for rescinding DACA violated the Administrative Procedure Act because it failed to offer any justification for repealing the central element of the DACA program: forbearance on deportation of undocumented immigrants who were brought to the United States as children. But Trump or a future president could still rescind DACA if they are willing to offer such a justification in the future and pay the political price of doing so. For that reason, I strongly agree with co-blogger Jonathan Adler’s view that this is a very narrow decision.

Today’s ruling does not definitively end either the legal or the political battle over DACA. Ultimately, only Congress can do that, by finally passing a law definitively protecting “Dreamers” from deportation and giving them permanent resident status in the United States. Until then, they will not be fully safe.

The Court’s decision addresses the legality of the Trump administration’s decision to rescind DACA, an Obama administration policy suspending deportation of some 800,000 undocumented immigrants who came to the United States as children. DACA allows such migrants (often referred to as “Dreamers,” after the Dream Act, which failed to pass Congress) to stay in the U.S. as long as they arrived in the  country when they were 15 years old or younger, were 30 or younger when the program began in 2012, have not been convicted of any crimes as of the time they apply for the program, and have either graduated from a U.S. high school, are currently enrolled in school, or have served in the armed forces. In addition to suspending deportation, the program also allows DACA recipients to obtain authorization for work in the US and accrue “lawful presence.”

The majority opinion by Chief Justice John Roberts concludes that the administration’s rescission of DACA was illegal, because it violated the Administrative Procedure Act’s requirement that federal agency decisions may not be “arbitrary and capricious.” As Roberts recognizes, this is a very permissive standard. But, in this case, the Department of Homeland Security fell short of it because its rationale for ending DACA relied on the notion that the program’s work authorization and law presence provisions are illegal, while failing to offer any justification for abolishing its central feature—”forbearance” from deportation:

In short, the Attorney General [in his opinion on the legality of DACA] neither addressed the forbearance policy at the heart of DACA nor compelled DHS to abandon that policy. Thus, removing benefits eligibility while continuing forbearance remained squarely within the discretion of Acting Secretary Duke, who was responsible for “[e]stablishing national immigration enforcement policies and priorities.” 116 Stat. 2178, 6 U. S. C. §202(5). But Duke’s memo offers no reason for terminating forbearance. She instead treated the Attorney General’s conclusion regarding the illegality of benefits as sufficient to rescind both benefits and forbearance, without explanation….

Even if it is illegal for DHS to extend work authorization and other benefits to DACA recipients, that conclusion supported only “disallow[ing]” benefits…. It did “not cast doubt” on the legality of forbearance or upon DHS’s original reasons for extending forbearance to childhood arrivals….Thus, given DHS’s earlier judgment that forbearance is “especially justified” for “productive young people” who were brought here as children and “know only this country as home,” App. to Pet. for Cert. 98a–99a, the DACA Memorandum could not be rescinded in full “without any consideration whatsoever” of a forbearance-only policy,

If anything qualifies as “arbitrary and capricious,” it is failure to provide a rationale for repealing the policy “at the heart” of the program the administration wanted to rescind.

The Department of Homeland Security did offer some policy rationales for rescinding forbearance on deportation in a memorandum issued many months after its initial decision to rescind. However, the Court concludes that the APA requires the agency to put forward its reasons at the time a policy change is made. Thus, the arguments in the later DHS memorandum “can be viewed only as impermissible post hoc rationalizations and thus are not properly before us.”

The requirement of a contemporaneous explanation may seem like arbitrary formalism. But the Court points out some good reasons for it:

Requiring a new decision before considering new reasons promotes “agency accountability,” Bowen v. American Hospital Assn., 476 U. S. 610, 643 (1986), by ensuring that parties and the public can respond fully and in a timely manner to an agency’s exercise of authority. Considering only contemporaneous explanations for agency action also instills confidence that the reasons given are not simply “convenient litigating position[s].” Christopher v. Smith Kline Beecham Corp., 567 U. S. 142, 155 (2012)…. Permitting agencies to invoke belated justifications, on the other hand, can upset “the orderly functioning of the process of review,” SEC v. Chenery Corp., 318 U. S. 80, 94 (1943), forcing both litigants and courts to chase a moving target. Each of these values would be markedly undermined were we to allow DHS to rely on reasons offered nine months after [Acting Secretary] Duke announced the rescission and after three different courts had identified flaws in the original explanation.

The majority opinion also concludes that the administration failed to properly consider the “reliance interests” of DACA recipients, in making its rescission decision.

In the lead dissent, Justice Clarence Thomas, joined by Alito and Gorsuch, argues that DACA was illegal, and that provides sufficient justification for rescission. But even he does not deny that the forbearance element of DACA was legal. That makes it impossible to justify repealing it merely on the basis that other parts of DACA were not.

In a solo dissent, Justice Brett Kavanaugh contended that the Court should have accepted the later DHS memorandum, because “post hoc” rationales are only forbidden when offered by lawyers in litigation, not when developed by the administration. The majority has what I think is a good response to that argument:

JUSTICE KAVANAUGH asserts that this “foundational principle of administrative law,” Michigan, 576 U. S., at 758, actually limits only what lawyers may argue, not what agencies may do…. While it is true that the Court has often rejected justifications belatedly advanced by advocates, we refer to this as a prohibition on post hoc rationalizations, not advocate rationalizations, because the problem is the timing, not the speaker. The functional reasons for requiring contemporaneous explanations apply with equal force regardless whether post hoc justifications are raised in court by those appearing on behalf of the agency or by agency officials themselves.

The Court’s decision strikes me as correct, in so far as it goes. But it is a very narrow ruling. It does not prevent Trump or a future president from rescinding DACA in the future. Indeed, as a legal matter, doing so would be relatively easy. All Trump would have to do is have DHS issue a new rescission memorandum that explicitly cites some policy rationale for abolishing forbearance on deportation. Alternatively, it could potentially abolish employment authorization and “lawful presence,” while leaving forbearance alone.

In my view, deporting the DACA recipients would be both deeply unjust and harmful to our economy and society. But satisfying the APA’s “arbitrary and capricious” standard does not require a good or even reasonable justification. It just has to meet very minimal standards of plausibility. Competent DHS staff could almost certainly come up with something that qualifies.

The main constraint on the administration’s options here is political, not legal. DACA is a very popular program, and even a president as hostile to immigration as Trump might not want to abolish it in a way that requires the administration to explicitly say they want to deport the Dreamers, as opposed to hiding behind technical legal arguments. Perhaps the administration is unwilling to pay that political price, especially in an election year.

Political considerations aside, the narrowness of the ruling and the ease with which the administration could potentially get around it should allay concerns that the decision will make it difficult for future presidents to reverse predecessor’s executive actions. They can still do so as long as they meet fairly minimal procedural standards.

The Supreme Court majority opinion also does not resolve the issue of whether the employment authorization and lawful presence elements of DACA are legal or not. These questions may well continue to be litigated in the lower courts.  I have previously argued that the employment authorization provision is clearly legal, while the “lawful presence” provision is more questionable, but can easily—if necessary- be severed from the rest of DACA. But these issues remain unsettled, and could even potentially return to the Supreme Court, should DACA remain in force under Trump—or should a future administration reinstate DACA after Trump rescinds it again.

Finally, an 8-1 majority of the justices (with only Sonia Sotomayor dissenting) rejected the plaintiffs’ argument that DACA rescission was unconstitutional because it was motivated by discriminatory animus against Hispanic immigrants, and therefore violated the Equal Protection Clause of the Fourteenth Amendment.

I think Justice Sotomayor makes some good points in her solo dissent on this issue. She is correct to argue that, under Supreme Court precedent, Trump’s bigoted statements against Latino immigrants during the 2016 election provide evidence of discriminatory motive that shifts the burden of proof to the government—requiring them to show they would have enacted the same policy even aside from the illegal motivation. But, here, I don’t think it would be difficult to prove that.

The belief that DACA is illegal is a longstanding and widely held view among conservative Republicans. It is not something that arose merely as a justification for acting on bigoted statements Trump made during the 2016 campaign. I think that view is wrong. But that doesn’t make it a mere pretext for bigotry. Had a more conventional Republican won the 2016 election—even one who is himself Hispanic, such as Ted Cruz or Marco Rubio—there is a good chance they would have tried to rescind DACA, as well.

This history makes DACA repeal different from the 2018 travel ban case, where the policy at issue clearly grew out of Trump’s notorious campaign promise to enact a “Muslim ban,” the official justification for it was transparently bogus, and it is highly unlikely that anything like it would have been enacted in the absence of Trump’s unconstitutional motive. The Court was disastrously wrong about the discrimination issue in the travel ban case. But it is on much sounder ground here.

I am not entirely sure even Justice Sotomayor would actually conclude that DACA repeal is unconstitutional based on discriminatory motivation. Her opinion merely concludes that the issue should have been remanded for further consideration by the trial court, at which point the administration could  potentially have addressed the issue by making the sort of argument I described above.

In sum, today’s ruling is an importan, but very limited victory for DACA and the Dreamers. The latter have reason to celebrate. But their safety still remains in doubt. Trump or a future president could still potentially rescind DACA, and today’s decision creates little in the way of legal obstacles to doing so. Only congressional action can truly free the Dreamers from the spectre of deportation.

 

 

 

from Latest – Reason.com https://ift.tt/3efblat
via IFTTT