All the parties in the case — the Trump administration, which argues that revoking DACA was entirely legal and not subject to judicial review, and the four states that insist the administration’s action was unlawful — agree the administration has the power to end the program. The immediate, and arcane-sounding, legal argument is about whether the administration proceeded correctly.
Specifically, the administration’s sole initial rationale for rescinding DACA was that the program was “illegal and unconstitutional," according to an opinion from then-Attorney General Jeff Sessions. That bare-bones assertion of illegality gave rise to a morass of administrative-law issues in the lower courts, which the Supreme Court took up Tuesday.
Courts give a lot of deference to most agency determinations, but in general they require them to be reasoned and rational. Here, the stated rationale that DACA was illegal sounds less like an actual policy analysis than an assertion that the Department of Homeland Security’s hands were tied by the law.
But looming over all these administrative-law issues was the shared recognition that, even it if loses the case, all the administration would have to do to conclusively rescind the program is go back and cross its T’s and dot its I’s. Given that reality, what point is really served by “playing ping pong” with the agency, as Justice Stephen G. Breyer (quoting former justice Abe Fortas) put it?
In other words, who really cares if the administration’s explanation was spare and incomplete? Justice Neil M. Gorsuch pointedly asked the plaintiffs’ lawyer, why force the agency to spruce up its reasons and then have “another five years of litigation over the adequacy of that explanation?”
Michael J. Mongan, state solicitor general of California, supplied the critical pushback to that line of reasoning in the final seconds of his brief presentation. Mongan got to the heart of the problem with the administration’s approach: "The Trump administration to date has not made a decision that actually takes ownership of a discretionary choice to end this policy. … If that is their intent, they could issue a new decision that actually does that so the public could hold them accountable for the choice they’ve made.”
That line of argument identifies what was pernicious about the way the administration sought to rescind a program that brought out of the shadows some 700,000 American-in-all-but-name young people, 90 percent of whom are employed and 45 percent of whom are in school. Ending the program would not only upend their world but would also harm families, employers and communities.
Candidate Donald Trump campaigned on the hardest of immigration lines, but once in office he softened his stance considerably about DACA beneficiaries, invoking his “big heart” and affection for the 700,000. The administration’s legal stance allows him to oversee the DACA revocation that so delighted his anti-immigration political base without accepting political responsibility for what he is doing — after all, he can claim it was a decision just forced on the administration by the dictates of the law. What choice did he have?
That shouldn’t cut it. If the Trump administration chooses to execute the heartless and irrational decision to rescind DACA, it should have to own it, politically and morally. It turns out that is the important legal principle the case really presents.