Arbitrary and Capricious

David and Sarah discuss the Supreme Court’s ruling that blocks the Trump administration from ending ...

Jun 18, 2020

David and Sarah discuss the Supreme Court’s ruling that blocks the Trump administration from ending DACA for now, return to their discussion over the Title VII ruling, and finish with the legal fight over John Bolton’s book.

Show Notes:

–Supreme Court DACA ruling

–Cass Sunstein on Gorsuch Title VII opinion

–Atlanta Journal-Constitution piece on Bostock

–David’s piece A Conservative Legal Chernobyl?

See omnystudio.com/listener for privacy information.

Conversations (34)

Comments (34)

Join The Dispatch to participate in the comments.

Sort by:

Bill 4 years ago

Apparently neither of you have seen/heard Leo Moracchioli's cover of Africa... SMDH indeed. My poor was subject to Toto's MTV video so many times back in the day that any rendition is now strictly forbidden - so I'm restricted to late-night listens with headphones.

Collapse

Curious Task 4 years ago

Here's what strikes me about the DACA ruling:

In the DAPA case, the 4 progressive justices are on record as believing that instituting DAPA did NOT violate the Administrative Procedures Act. Those same 4 justices have now signed on to a decision that rescinding a nearly identical program DOES violate the APA. That is some impressive intellectual pliability.

It seems like only one wing of the court seems bound by judicial philosophy. All a petitioner on the progressive side of a case has to do is come up with a process argument that at least one justice on the conservative side will buy into, since the votes of the 4 progressive justices are not in jeopardy. Does anyone seriously believe that Breyer, Ginsburg, Kagan and Sotomayor would apply the same APA standards if it meant the outcome disfavored a progressive policy?

Think of this counter-factual: the Trump administration issues a memorandum creating a program called Deferred Accounting for Productive Assets, that allows for accelerated depreciation of capital goods to reduce corporate taxes, even though Congress had recently considered and rejected this tax treatment. It directs the Treasury Dept to issue amnesty letters to companies that use this program to reduce their taxes.

In the first year of the Biden administration, the program is rescinded by memorandum, and affected corporations sue to enjoin the rescission. Is there any doubt that the case would lose 9-0?

Collapse

BWG 4 years ago

"Benign discrimination"??? There is no such thing. Someone is always hurt by discrimination, even when it's called affirmative action.

Collapse

Rev Snow 4 years ago

It's aggravating to me that Justice Roberts gets 100% of the grief over an opinion that doesn't make sense. His senseless opinion would be near harmless if four other Justices had not also joined it. Yet they do not write separately to concur, so their accountability is diminished, All the argument over substance is on the right. The Left will board any ship heading in their direction.

Collapse

Curious Task 4 years ago

Worse: those same four justices are now on record that a program can be CREATED without going through APA, but cannot be RESCINDED without going through it. Yet none of them will be called out for this inconsistency.

Collapse

Disc.Thom 4 years ago

Since Roberts is so protective of SCOTUS reputation, is it worse in presidential election years? Should petitioners more carefully choose when to petition the court to try and avoid PEY decisions?

Collapse

Mick.Staton 4 years ago

I have another theory about the DACA decision. As David explains, DACA was essentially "created with a memo" in violation of the APA. Then DAPA is "created with a memo" as well. Roberts votes against DAPA because it violates the APA. Now here comes the Trump administration and they decide to "rescind with a memo." In all three instances Roberts has been consistent on the process. He said creating DAPA with a memo is not legal. He also apparently thinks creating DACA with a memo is not legal. Following that logic, you cannot then simply rescind DACA with a memo, because all three methods violate the law.

If Roberts allows the Trump administration to violate the APA in getting rid of DACA, then you are essentially arguing that it was legal for the Obama administration to violate the APA to create DACA in the first place. This would have huge long term implications for a future president who could then create all kinds of illegal programs with just "a pen and a phone."

The suit to end DACA is sitting in the 5th Circuit like Sarah said. That case can now go forward and the program will be ended. Roberts will rule that DACA was illegally created and he will be consistent across all three cases. I don't like the situation, but I do understand it, and you can really lay the blame for this at Trump's feet since he dragged them for so long in rescinding the program in the first place, and then just decided to wing it.

Collapse

Kevin Johnson 4 years ago

David, what a week! First, “passive voice-gate”...Haaavaahd’s rep may never recover. Then, Sarah’s dis of your poor, weak, measly security clearance, compared to her powerful, vigorous, huge one! Finally, Sarah christening you and your generation “selfish bastards!” This is before even considering SCOTUS decisions. We hope your pride will recover, given how we count on you. Take Saturday off! Thanks.

Collapse

JDW 4 years ago

I'm your age David French and I too remember those days. I was obsessed with how to survive after a nuclear attack. Even in 6th grade I knew far more than a kid should about surviving radiation and fallout. I remember the movie "The Day After" very well. I remember the drills to get under your desk because an attack was coming. I also remember joking with my friends that being under the desk wasn't going to save us. That was grade school.

One thing about it. The USSR kept us as a nation more unified. In that sense it was a silver lining.

Good podcast.

Collapse

IHF 4 years ago

I agree with the gist of Mr. French’s intuition, but I would go farther. I think this is a very deliberate, real-world message from Chief Justice Roberts to the Trump administration (and its acolytes) about respect for the judiciary.

Trump has been trashing the judiciary for years, and his administration has repeatedly showed its contempt for the idea that its representatives have a deeply important duty to be candid with any court they appear in front of. Again and again, the administration has offered courts at all levels plainly spurious evidence and argument, and has compounded that with a level of vitriol about judicial integrity and independence that is at the very high end of the historic scale of judicial abuse.

The Chief Justice has had to speak out publicly on a number of occasions to defend the integrity of the judicial system as a whole. This is him reminding Trump that the Chief Justice of a Supreme Court has weapons other than speeches at his disposal to make his point.

This kind of hardball is, by the way, a very important part of how the “checks and balances” everyone loves to rattle on about actually works in the real world. This is Chief Justice Roberts’ equivalent of President Jackson’s (apocryphal) “He has made his order, now let him enforce it.”

Collapse

Pastorfbt 4 years ago

As a former attorney I still have trouble following the majority's reasoning! David and Sarah did their best but there's clearly more in play than just legalisms.

Collapse

1 2 Next »