Never let it be said that the Supreme Court lacks a flair for the dramatic. Just three days after a series of rulings and orders that led me to ask whether America witnessed “a conservative legal Chernobyl,” SCOTUS dropped another momentous ruling. This time, it defied the Trump administration and saved (for now, at least) the Obama administration immigration program called Deferred Action for Childhood Arrival, better known as DACA. Justice Roberts joined the four Democratic nominees to write the majority opinion in the case, called Department of Homeland Security v. Regents of the University of California.
Reading the case, the legal analyst in me was surprised and disappointed. The litigator in me, however, immediately recognized a possible reason for Roberts’s ruling. The opinion, in my view, contradicts the law (and is inconsistent with the chief justice’s own jurisprudence). The actual outcome, interestingly enough, might be better explained by a Trump tweet:
I’ll explain in a moment. But first, the analysis. The short version of what happened is this—the Obama administration enacted a substantive change in immigration law through a memorandum that defied immigration statutes and the Administrative Procedure Act, a statute that requires the executive branch to go through a specific rulemaking process before enacting substantive regulations.
The DACA program did two things—first, it exercised “prosecutorial discretion” to permit illegal immigrants who arrived in the United States as children to receive a two-year forbearance of removal. Second, those granted forbearance then became eligible for “work authorization and other federal benefits.”