Douglas Andrews / Jun. 19, 2020

SCOTUS Strikes Out on DACA

John Roberts once said he’d be an “umpire” as a justice. Well, he just whiffed big time.

“Judges are like umpires,” declared Supreme Court Chief Justice John Roberts during his own confirmation hearings in 2005. “The role of an umpire and a judge is … a limited role. Nobody ever went to a ballgame to see the umpire.”

Roberts is certainly right about umpires, but he’s wrong about the role he’s assumed lately on the bench. In siding with the Supreme Court’s four liberal justices, he rejected the Trump administration’s 2017 decision to cancel Barack Obama’s notorious DACA program on purely procedural grounds. The Court, according to The Wall Street Journal, “said the administration acted arbitrarily when it moved to end the Deferred Action for Childhood Arrivals program, failing to offer adequate reasons for doing so.”

Thus, when faced with a supremely consequential court case affecting both our nation’s immigration policy and the lives of hundreds of thousands of DACA recipients, the chief justice yelled “Ball!” to a down-the-middle strike — all because he didn’t like the way it curved coming into the zone.

Or, as National Review’s editors put it, the Court has given “amnesty to illegal regulations.”

Back in 2014, Mark Alexander observed, “Obama previously declared 22 times that he does not have the authority to legislate immigration policy by EO. But as a ‘lame duck’ president, beyond the midterm election that dealt his policies a severe defeat, he has now found the power to legislate from the executive branch.” And he did it without following the same procedure Roberts and the other SCOTUS liberals now demand Trump follow.

That is exactly backwards. Trump should have wide latitude to undo what his predecessor did unlawfully. Instead, the Court effectively ordered the president to continue enforcing an order that exceeds his authority.

If Obama is all smiles about a Supreme Court decision — and he clearly is after this one — you can be sure it’s a bad day for Rule of Law.

We suppose it’s a relief that Roberts didn’t see fit to rule the Trump administration’s rescission of the unconstitutional DACA program itself unconstitutional. In fact, he made clear that it wasn’t, and he provided an opening for the president to try again. “The dispute before the Court is not whether [the Department of Homeland Security] may rescind DACA,” he said. “All parties agree that it may. The dispute is instead primarily about the procedure the agency followed in doing so.”

Ah, “the procedure.”

On the contrary, Justice Clarence Thomas nailed it when he said, “Today’s decision must be recognized for what it is: an effort to avoid a politically controversial but legally correct decision.”

Thomas explained, “[DACA] was unlawful from its inception. The majority does not even attempt to explain why a court has the authority to scrutinize an agency’s policy reasons for rescinding an unlawful program under the arbitrary and capricious microscope. … So long as the agency’s determination of illegality is sound, our review should be at an end. … 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.”

Justice Samuel Alito marveled, “What this means is that the Federal Judiciary, without holding that DACA cannot be rescinded, has prevented that from occurring during an entire Presidential term. Our constitutional system is not supposed to work that way.”

As for the political ramifications, The Wall Street Journal editorial board astutely observes that it’s pretty clear John Roberts is regularly caving to Democrat political pressure on critical cases. “The Daca ruling is merely the latest in which the Chief Justice has joined the liberals to avoid a ruling that would have been criticized by the media and Democrats,” the editors argue. “Recall ObamaCare, the 2019 Census case, and Monday’s on sex and gender identity. It’s hard to avoid the conclusion that the campaign of intimidation and threat of court-packing by Senate Democrats are getting the results they want.”

Needless to say, it’s been a tough week for those of us who thought we had a solid 5-4 conservative majority on the High Court. On the flip side, of course, it’s been an altogether magnificent week for progressives — and for the branch of government that Thomas Jefferson warned us might one day be “despotic.”

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