Supreme Court ruling on Dreamers sends a clear message to the White House: You have to tell the truth

When it came down to it, the fate of 700,000 immigrants brought to U.S. as children hung on a simple question: Does the White House have to tell the whole truth in justifying its move to deport them?

On June 8, the Supreme Court said “yes.”^[1]

In a 5-to-4 decision that came as a major blow to President Trump, the justices ruled that the administration could not proceed with plans to dismantle Deferred Action for Childhood Arrivals^[2], or DACA. The Obama-era provision halted the deportation of undocumented immigrants brought to the U.S. at an early age, often referred to as Dreamers. Its provisions allow for those young people to live and work in the U.S. although doesn’t provide a path to citizenship.

DACA will now stay in place…for the time being.

In ruling against the White House, the Supreme Court did hold out the possibility that the administration could try to rescind DACA at a later date. Only next time, they would have to provide adequate reasoning for doing so.

Writing the majority opinion^[3], Chief Justice John Roberts explained: “We do not decide whether DACA or its rescission are sound policies. The wisdom of those decisions is none of our concern.” He continued: “We address only whether the agency complied with the procedural requirement that it provide a reasoned explanation for its action.” And it is here the Supreme Court found the administration wanting.

Trump responded by tweeting that the ruling was “horrible & politically charged.”

From the beginning, this case was not about whether the president of the United States has the authority to rescind DACA. All of the parties involved agreed that he does^[4]. Rather, the question was whether under U.S. law, the executive branch has to give complete and accurate reasons for its actions.

From my perspective as a scholar of constitutional politics^[5], the fact that the Supreme Court has now answered “yes” has broad ramifications. It could usher in a new era in which the Supreme Court and many lower courts judge the evasion or candor of public officials.

A “no,” on the other hand, would have given carte blanche to the executive branch to avoid public accountability and offer less-than-full reasons for doing what it does.

The truth?

The core of the case became clear during oral arguments in November.

Advocates for DACA recipients and the government both seemed to agree that the court’s role was only to determine if the procedure the Trump administration followed was adequate under congressional laws, especially the Administrative Procedure Act^[6]. The case was about procedure, not policy.

Perhaps the key exchange in November’s arguments was a fascinating exchange^[7] between Justice Brett Kavanaugh and Ted Olson^[8], the advocate for DACA recipients:

Justice Kavanaugh: Do you agree that the executive has the legal authority to rescind DACA?

Mr. Olson: Yes.

Justice Kavanaugh: Okay. So the question then comes down to the explanation.

The whole truth?

Trump’s position on Dreamers has shifted over time. In the early days of his presidency, he told reporters^[9] that he would show “great heart” over the issue, adding that there were some “absolutely incredible kids” in the program.

But by the fall of 2019, Trump was portraying Dreamers in a different light, suggesting that “some are very tough, hardened criminals.”

Different explanations for his decision to rescind DACA were heard by the Supreme Court.

The administration argued that DACA was unconstitutional to begin with, on the grounds that the executive order from President Obama exceeded executive authority^[10].

Advocates for the DACA recipients offered alternative explanations. They argued that the White House is willing to accept the high costs to so many current residents in order to achieve their political goal of reducing the number of unauthorized immigrants. Or as Justice Sonia Sotomayor phrased it, this is a “political decision” that “is not about the law; this is about our choice to destroy lives^[11].”

Others said^[12] the administration was using DACA as a bargaining chip for other legislative goals, including funding for the border wall^[13].

It all came down to whether the justices believed that the administration was doing this for partisan and policy reasons. And if so, was the White House legally bound to be honest in explaining why?

Justice Elena Kagan, who joined Justice Roberts in the majority decision along with the three other liberal justices, asked the key question back in November’s arguments: “Well, what would an adequate explanation look like?”^[14]

Justice Ruth Bader Ginsburg suggested the answer should be, “We don’t like DACA and we’re taking responsibility for that, instead of trying to put the blame on the law^[15].”

And nothing but?

Ahead of the June 18 ruling, Justice Stephen Breyer asked an important question for the legacy of the ruling: “What’s the point?”^[16] In other words, why make the administration say what everyone already knows – that it opposes DACA and is not moved by the human cost of deportation?

The answer came from Michael Mongan, advocate for the University of California, where around 1,700 Dreamers study^[17]. He argued in November that the reason to reject the Trump administation’s actions is that “they have not made a decision that actually takes ownership of a discretionary choice to end this policy … so the public could hold them accountable for the choice they’ve made^[18].”

The point is democratic accountability. If the executive branch is forced to make full and honest admissions, then voters can judge elected officials accurately.

In regard to the effects on DACA recipients, Chief Justice Roberts ruled that the administration “should have considered these matters but did not^[19].”

…so help us all!

The DACA ruling was anticipated by an earlier precedent established by Chief Justice Roberts.

In 2019, when the Supreme Court rejected the Trump administration’s effort^[20] to put a citizenship question on the 2020 census, Roberts argued that if the executive branch advances dishonest arguments, the court would not accept them. The phrases Roberts used included “pretext^[21],” “contrived^[22]” and “a story that does not match the explanation^[23].” In common language, that means lying.

Roberts’ assertion in the census case met with deep disdain from Justice Clarence Thomas, who wrote^[24]: “For the first time ever, the court invalidates an agency action solely because it questions the sincerity of the agency’s otherwise adequate rationale.”

In his dissent to the DACA ruling, Thomas describes the decision as “mystifying^[25].” In deciding to rule on, in Roberts’ words, “whether the agency action was adequately explained^[26],” Thomas argues that the decision “has given the green light for future political battles to be fought in this Court rather than where they rightfully belong – the political branches^[27].”

The point has been even more bluntly made by Justice Samuel Alito. Having said in the census case^[28] that the federal judiciary had “no authority to stick its nose into” whether reasons given by the administration were the “only reasons,” he followed the DACA ruling with a one-page dissent stating simply, “our constitutional system is not supposed to work that way^[29].”

With this decision, Justice Roberts has extended his ruling on the census, demanding executive candor regarding DACA as well. The long-term legacy of this case may be that the Supreme Court led by John Roberts has now become an arbiter of public honesty.

This is an updated version of an article originally published^[30] on Jan. 15.

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References

1. ^{^} Supreme Court said “yes.” (www.nytimes.com)
2. ^{^} Deferred Action for Childhood Arrivals (www.npr.org)
3. ^{^} the majority opinion (www.supremecourt.gov)
4. ^{^} All of the parties involved agreed that he does (www.supremecourt.gov)
5. ^{^} scholar of constitutional politics (www.routledge.com)
6. ^{^} Administrative Procedure Act (www.politico.com)
7. ^{^} exchange (www.supremecourt.gov)
8. ^{^} and Ted Olson (www.supremecourt.gov)
9. ^{^} told reporters (www.whitehouse.gov)
10. ^{^} exceeded executive authority (i2.cdn.turner.com)
11. ^{^} choice to destroy lives (www.supremecourt.gov)
12. ^{^} said (thinkprogress.org)
13. ^{^} funding for the border wall (www.nytimes.com)
14. ^{^} “Well, what would an adequate explanation look like?” (www.supremecourt.gov)
15. ^{^} “We don’t like DACA and we’re taking responsibility for that, instead of trying to put the blame on the law (www.supremecourt.gov)
16. ^{^} “What’s the point?” (www.supremecourt.gov)
17. ^{^} around 1,700 Dreamers study (www.universityofcalifornia.edu)
18. ^{^} hold them accountable for the choice they’ve made (www.supremecourt.gov)
19. ^{^} should have considered these matters but did not (www.supremecourt.gov)
20. ^{^} rejected the Trump administration’s effort (theconversation.com)
21. ^{^} pretext (www.supremecourt.gov)
22. ^{^} contrived (www.supremecourt.gov)
23. ^{^} a story that does not match the explanation (www.supremecourt.gov)
24. ^{^} who wrote (www.supremecourt.gov)
25. ^{^} mystifying (www.supremecourt.gov)
26. ^{^} whether the agency action was adequately explained (www.supremecourt.gov)
27. ^{^} has given the green light for future political battles to be fought in this Court rather than where they rightfully belong – the political branches (www.supremecourt.gov)
28. ^{^} said in the census case (www.supremecourt.gov)
29. ^{^} our constitutional system is not supposed to work that way (www.supremecourt.gov)
30. ^{^} an article originally published (theconversation.com)
31. ^{^} Sign up for our weekly newsletter (theconversation.com)