DACA Appears in Jeopardy at Supreme Court

and on Bloomberg dot com slash podcasts. It's one of the biggest cases of the Supreme Court's term, involving presidential powers and the fate of seven hundred thousands so called dreamers, and in oral arguments the Supreme Courts conservative justices seemed inclined to let President Trump cancel the DOCCA program that shields those young undocumented immigrants from deportation. Justice Sonya Soto Mayora, like some of the other liberal justices, expressed concern about

the reliance dreamers placed on the DOCCA program. I think my colleagues have rightly pointed there's a whole lot of reliance interests that were looked at, including the very president of current president telling DOCTA eligible people that they were safe under him and that he would find a way to keep them here, and so he hasn't and instead he's done this, and that I think has something to be considered before you resend a policy right, not just saying I'll give you six months to do it right,

to destroy your lives. But some conservative justices accepted the administration's reasons for terminating DACA. Others saw no point in making the Trump administration provide more elaborate reasoning in the future. Here's Justice Neil Gorsch. I think your your friend on the other side, would say, we did addrest for Alliance interrists in a paragraph, and we could do it in

fifteen pages. But we'd say pretty much the same thing at the end of the day, and it takes another six years, and it would leave this class of persons under a continuing cloud of uncertainty and continue stasis in the political branches because they would not have a baseline rule of decision from this court. Joining me is Neil Kinkoff, a professor of constitutional law at Georgia State University College

of Law, explain the issue before the justices. The issue is a fairly technical issue relating to the agency's discretion to rescind the DACCA program. And really it turns on the question of why the administration is rescinding the DOCCA program. If it's doing it just as a matter of policy, discretion, then that decision is essentially unreviewable by the courts. If, on the other hand, it's doing it because it thinks DACA was illegal, then the court can review that decision.

And so a lot of the argument had to do with that. And one of the arguments that gets made is, well, why should it matter. The administration clearly wants to rescind this, so who cares whether it's for reasons of law or reasons of policy discretion. And the answer is twofold. First of all, the agency's decision leaned very heavily on the supposed illegality of DHAKA and gave only very brief attention

to policy reasons. And in fact, President Trump himself has said that as a matter of policy, he wants to adhere to something like DACA. So if it's based only on policy, it's not actually clear that the administration would rescind data. And so in fact, their emphasis has been on the argument that well, it was illegal, it really unlikely to be true reading of the law. And so the court is wrestling with this question of whether or not they should force the administration to own the policy,

which is ultimately the stakes in this case. Transparency the administration if it wants to rescind Daca can but it needs to say we are doing it, and we are doing it as a matter of policy, and not hide behind a lawyer's legal opinion. Didn't a solicitor general say at the arguments we own the policy. He did, But that's hardly a sort of official pronouncement to the public

from the administration. Right, So the solicitor General saying this in the cosseted warrens of the Supreme Court doesn't have the same kind of transparency as the Secretary of the Department of Homeland Security or the President actually in a press conference saying on camera, we are rescinding the Dacca policy because we are opposed to this policy. Right, That's a position, in fact, the President has never been willing to take, and every public pronouncement he's made is one

of sympathy for Dacca and for the dreamers. So the insequence of a Supreme Court ruling should be that if the president wants to do that, the president has to own it. So Neil. It seems from everyone who was watching the arguments that the conservative justices seem to support the Trump administration in this and seem to be willing to rule that DACA is illegal. Well, I'm not sure they're going to be willing to rule that DOCCA is illegal.

I think it's pretty clear that the conservative justices want to just say, well, the president can resend this policy if the president wants to, and we'd really rather not get into the reasons. Some of the conservative justices said they think DOCCA is illegal, although it's awfully hard to square that conclusion with their conclusion that President Trump's travel ban was permissible. Right, I mean, it's not the same section of the immigration law, but it is still the

immigration law, and the underpinning of that case. The reasoning for that case was the immigration law gives the president great discretion with respect to who comes in and who stays in, and if that's right, the same reasoning leads to the conclusion that President Obama's decision about whom to deport is well within the kind of discretion that the

immigration law gives to the president. And in fact, there's an awful lot of precedent from president's Republican and democratic doing exactly the kind of thing the President Obama did. So I don't think the Court is actually very eager to get at the legality of Dhaka itself. So might the Conservative justices be willing then to say that the reasoning for it, the policy reasons behind it, were legitimate. It could The problem of them doing that is the

policy reasons articulated we're really really thin. And so if the administration is going to resend Dhaka on policy grounds, the Administrative Procedure Act makes it pretty clear they need to say what those crowns are right, They need to actually do the policy analysis and not say, well, this is some political promise from the President that that we're trying to enforce. So where do you think the court

will come down. I think ultimately they're going to issue a not very clear opinion that has the conclusion that the President can rassind Dhaka. I don't think it's going to be very clear exactly why they're letting him do that, other than to say, well, the President has discretion here and we don't want to get involved in interfering with that.

Is it going to be dependent on Chief Justice Robert because you mentioned the travel ban, so he was with the Conservatives and the travel band case, but he was with the liberals in the census question case. So is it up to him. Well, he's the obvious justice that sometimes swings against presidential power. So he's he's the fit vote that I think, for the most part, people are looking for. I think certainly Justice Kavanaugh is not going to vote for the Dreamers. I don't think Thomas will

Gore such an Alito are are possible as well. So I don't think Roberts is the only potential swing vote, but he's the most likely. Justice. Sonia Soto Mayor said, this is not about the law. This is about our choice to destroy lives. If it's not about the law, then why is it before the Supreme Court? And is she going outside? You know the confines of what's before

the court. Well, the law requires the administrative agency to make a reasoned decision, and so the reasons it gives relate to the dramatic consequences that follow from ending DAKA, and so I think what Justice Soto Mayor was getting at there is it is the proper role of the courts to force the administration to consider the consequences of its action. They can't tell them not to take the action, but the administration has to consider and justify those consequences.

And if you look at the actual policy rationale it gave. Like I said, it's incredibly thin. It notices that there would be dramatic consequences to deporting all the Dreamers, and then says, essentially, our hands are tied because Dacca was illegal. Well, if that's wrong, that Dacca was illegal, now it has to consider whether or not it's willing to voluntarily impose those consequences. And nothing in their rationale indicated that they

were willing voluntarily to impose those consequences. Only that g We're sorry, our hands are tied because Dacca was illegal. What impressed you about the arguments? The impression I came away with was just how how much the conservative justices really wanted to defer to the executive branch. I think that has real foreboding for a lot of cases that are coming down the pike, not just the Dreamer case, which deals with an important, even almost existential question for

hundreds of thousands of Americans. I don't want to minimize the importance of that case, but when we think about it, saying the context of the ongoing impeachment and all of the legal questions relating to that, I think the posture that the conservative justices took at oral argument sort of has a foreshadowing for cases that are apt to come out of that other area. I mean, I don't think there's a very important legal question involved in this case.

You know, ultimately, of course, the Trump administration can rescind DOKA. It was a matter of executive discretion when Obama issued it, and it's a matter of executive discretion to rescind it. It is the case that they have to give good and valid reasons and stick by those reasons. But I have a certain amount of sympathy for the argument that, well, why bother making them go back and redo it, because they're just going to paper the record, and you know,

maybe they will. In fact, I expect that they will, but there's a chance that they wouldn't, And given the importance of the issue, I think it's maybe appropriate to make them do it right. But again, it's not a very important question of law. It's very clear that this is just a matter of executive discretion, and what's being argued over isn't whether the president has the power or whether the administration has the power. It's more did they

dot their eyes and cross their keys? Thanks Neil, that's Neil Kinkoff, a professor at Georgia State University College of Law. Thanks for listening to the Bloomberg Law Podcast. You can subscribe and listen to the show on Apple Podcasts, SoundCloud, and on Bloomberg dot com slash podcast. I'm June Brosso. This is Bloomberg Ye.