Supreme Court Stops Trump From Ending DACA

and lets them get jobs. Chief Justice John Roberts joined the Courts for Liberals to rule that the administration's recision of Dhaka was arbitrary and capricious. Immigrant advocates like Natalie ray As, the president of the Latino Victory Project, were elated with the decision. I'm overly joyed because of this is the right thing to do. UM, this is what America has been built on the immigrant community, and UM, it's just so wonderful to have UM the Supreme Court

ruling on our in our favor. And California Orney General Javier Bassara said the Supreme Court was sending a message to the Trump administration. We've had so many victories against this administration in court. They just refused to follow the rules. They seem to be very impatient and they don't believe the rules apply to them. But that's apparently not the message President Trump got. He tweeted that the Court's rulings

are quote horrible and politically charged. Joining me is Leon Fresco, a partner at Holland and Knight who was formerly the head of the Justice Department's Office of Immigration Litigation. Did this decision from the Supreme Court come as a surprise, Well, it depends if you base it on what happened at the oral argument, versays looking at the history of what

Justice Roberts has done on immigration. If you base it on what happened at the oral argument, you would certainly think it was a surprise, as Justice Robert didn't tip his hands to make people think he would rule in

favor of preserving data. But if you look at it from where Justice Roberts had already come to in these decisions, you can look at the fact that in twelve, in the Arizona versus United States case, which talked about the Arizona Lague, Justice Scalia for whatever reason, had raised the issue of whether DOCCA was legal or not, and so there was already an opinion, which Justice Kennedy wrote in that case, which Justice Roberts signed onto, which said that

the President didn't do anything illegally in putting DOCCA in in the first place, and so Justice Roberts couldn't sign onto the opinion that was written by Justice Thomas that DOCCA was illegal. But he also wanted to not say that it was unreviewable, like Justice Alito said, because he wanted to preserve the ability of the courts to strike a potential new program that a President Biden would do that might legalize all eleven million people. So he settled

on the simplest possible solution. We just to say that the reasoning given by the administration was insufficient. So basically, did the chiefs say, this is not about whether the Trump administration could terminate DOCTA. Everyone agrees that they could, but it's about how they went about terminating DOCTA. Correct. What happened was all of the nine justices stipulated to the fact that the program could be rescinded, because even the DOCUMENTO from says that DOCTA programs could be resented,

and so everybody agreed on that issue. The issue was the manner in which it was to be resented, and the justification given, and so the justification that had been given was that the doctor program is illegal, and Justice Robert did not want to opine in his decision as to whether that justification was true or not, so he

did not. He skipped that issue, and he instead said that in the end, that was insufficient to just address the illegality legality of DOCCA, because that would say nothing as to what would be the fate of the status of the people here, would they be able to keep it for how long had they sufficiently relied on the program in order to remain in the United States, And that because none of that was addressed, all of that needed to be addressed in a subsequent DOCCA recission memo.

So does he want the administration to think about the hardships to the doctor recipients? Is that part of it? That was certainly indicated as part of the decision that he would want a more robust analysis as to what would be the impact of resending the program and how that impact would be managed. In Justice Clarence Thomas's dissent, he said that the majority opinion was an effort to

avoid a politically controversial but legally correct decision. Explain where the dissenters were coming from where Justice Thomas, Justice Gorsas, and Justice a Lego group of three came down and this was sort of I always do. There'd be three. I didn't know which three there would be, but I had a suspicion there would be three justices who would say DOCCA is an illegal program, period. And once the program is illegal, there's nothing more to review by anybody

because the administration doesn't have to do anything. If a program is illegal, the program is illegal. Hence it goes away. And what Justice Thomas is criticizing Justice Roberts for doing is because Justice Roberts doesn't decide the question of legality versus illegality. He thinks, to Justice Roberts, what difference does it make how the program was ended? Is it's illegal?

And Justice Roberts did not address that question because he said, even if the program is illegal, it has to go through certain analysis about how that program is to be wound down. And that analysis didn't occur here. And that's where the fundamental disagreement is between the Republican justice is if it's illegal, is that it or is there more huge even if the program is illegal? So a lot of people watch. Justice Sony so to Mayor. In immigration cases,

she joined most of the majority opinion right. She agreed with the principle that the justification given was insufficient, but she, unlike Justice Roberts, did not want to dismiss the other claim that was made in that case, which was that the data recision was also unlawful because it was motivated by its discriminatory animate. She said that there was plenty of record evidence to allow that claim to continue. So

President Obama created the program by executive order. We've seen President Trump do a lot of things by executive order. Why do they contend it's illegal? Well, so the issue is this A lot of the things that the President Trump has been doing with regard to executive orders have all been involving the use of the statutory authority of the travel band that deal with different banning different people who are outside the United States. This docta issue pertains

to people who are already here. And so what the Supreme Court said today is, if you are going to respind something that affects real people who are already here, you have to provide an analysis under the Administrative Procedure Act that's not arbitrary. And capricious, And he said that that analysis was arbitrary and capricious because it did not adequately explain what were the reasons for rescinding it, other than saying it was illegal, which was a reason that

he just said was insufficient. Just saying it was illegal was insufficient. You had to discuss the reliance interests of the people who had signed up and who had been in this pro rom for many years. And even if it was illegal, what would you do in the future to sort of manage the expectations of these people in the middle of their processes? Would would the government actually

start taking people off? What would they do? And he also drew a distinction, which was an important distinction between the two aspects of data, because there are two aspects. One is the aspect that shields your deportation, and the second is the aspect that allows you to work here.

And he said that the justification that was given only really addressed the fact that allowing people to work here while they were here without status was illegal, but it didn't justify couldn't the government at least still shield people from deportation and even if they couldn't work here, And without going into that bifurcated analysis. It was insufficient. So the Conservatives think that President Obama did not have the power to create eight data correct the three conservative justices

now Justice Kavadat interestingly did not reach that determination. He just said that there was a memo nine months later after the initial doctor recision, memo that Kirsten Nielsen then wrote as Secretary of Homeland Security that contained all of this, and that that memo should have been allowed to serve as a justification. And Justice Roberts didn't address the merits of the Nielsen memos. He didn't tip his hand to say whether that was going to be sufficient or not.

He simply said it couldn't be relied upon because the litigation had already started and that memo hadn't been issued until after the litigation was started. Are the Dreamers able to breathe a sigh of relief now? Are they safe? Well? Nothing is permanent for the Dreamers for multiple reasons. Day the program was not permanently. The Court said nothing today

that made it permanent. But what they can probably take solace on is that for some period of time, if your doctor status is set to expire, you should immediate He gets a renewal application in there to try to at least get two more years in your particular case,

if you're a DACKA holder. And so there's gonna be some number of data holders who will be able to renew their status now that weren't going to be able to renew their status even if it gets rescinded, and moving forward in the future, it's going to be an interesting and open question as to whether the President will feel like there's any advantage to trying again to rEFInd DACCA.

But as a practical matter, if your concern is, well, let me get through the election, I would say it's a virtual certainty that DOCTA won't be rescinded, either because there won't be a memo issue or because there will be an injunction issued until after the election. And that's what Justice Alito basically that too, is that you know, Trump is not going to be allowed to do something that he should have been allowed to do the first

term is gone. So, I mean, even Alito basically completed that point, and Leon it would take some time time, wouldn't it to get that memo together to answer all of Justice Robert's points, right, I mean, we don't know, because the issue is, well, maybe the kursten Nielsen memo is going to be enough, but of course that memo was written two years ago, so it's still relevance that today.

If you're looking at this in the like most favorable to the administration, they could make arguments about COVID and unemployment that might be relevant for them. But by the flip side, the DOTA supporters can make the arguments about how many doctor workers are essential workers for various reasons in this current economy, and so those things can all go back and forth, and the question would be, Okay, you write a memo. Whatever memo you write, let's say

you can get it done in thirty days. You know, people would sue in every court in the country hoping to get one injunction, and you would assume they'd be able to get at least one injunction that enjoys the

termination of DOT. And then the question is it's very unlikely given what we've seen that Justice Roberts will supply the fifth vote to say that injunction and like he did in the public charge case, meaning DOCTA would survive until at least June, if not in June so now looking at the big picture, this is the third case I believe in which the Supreme Court has considered the

president's power in immigration. You have the Muslim ban where they upheld the president's power, and you have the Census case where they did not, and they basically kicked that can down the road as well. Do you see any similarities or threads that would allow us to predict a little bit better what the Court will do in immigration decisions? Sure? I think the best thing that I can sort of craft out of the differently threaded decisions is the sort

of prospect continues to hold. I think, and this has been like a hundred year thing. This has not been a one year thing or a trump that if the human being is not inside the United States, the chances that they're gonna get any sympathy from the Court is

going to be very low. Hence all of the travel band victory and other things like that and public charred things where the idea is, even though some of the folks are here, you're still preventing people from essentially becoming part of the American fabric unless they do certain things versus like the Census and DOCCA and other decisions we've seen where once a person is here and has been here for quite some time, the court is looking at

these with much larger scrutiny about the fate of these individuals. Thanks Leon Best, Leon Fresco of Hollanden Night. 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 Bosso. This is Bloomberg two