As Roberts wrote in the court’s majority opinion, "[The Department of Homeland Security] ... failed to consider the conspicuous issues of whether to retain forbearance and what if anything to do about the hardship to DACA recipients. That dual failure raises doubts about whether the agency appreciated the scope of its discretion or exercised that discretion in a reasonable manner.”
Constitutional scholar Laurence Tribe told me, “This was an important victory not just for the Dreamers, who now become a campaign issue in light of the limbo in which their status was left by the Court’s 5-4 decision, but for the rule of law.” He explained, “The majority’s refusal to accept the administration’s post-hoc rationalization for DACA’s rescission — a rationalization that, as the Chief Justice’s opinion made clear, failed to explain, let alone justify, invalidating the forbearance part of the DACA policy and addressed only the benefits part — was an important vindication for the principle that agency decisions that are arbitrary and capricious when issued cannot be rescued by some after-the-fact suggestions of alternative grounds on which the decisions might have been reached.” He said he was disappointed that the court did not adopt the equal protection argument advanced in the case (that the administration’s rescission of the program was racially motivated), but that remains an issue on remand to the lower court.
Not unlike as in last year’s census case, the administration lost here for failure to observe the most rudimentary legal requirements. Its incompetence is matched only by its cruelty in seeking to pull the plug on the legal status of hundreds of thousands of Americans brought here illegally as children. Matt Miller, a Justice Department spokesman during the Obama administration, tweeted:
Theoretically, the administration could go back and come up with findings that solve its deficiency. However, it is far from clear whether the administration has the nerve to re-raise yet another issue on which it is at odds with public opinion (which overwhelmingly favors allowing DACA beneficiaries to remain in the United States).
Trump responded with a bizarrely violent and partisan assault on the court:
The world-class narcissist also asked on Twitter: “Do you get the impression that the Supreme Court doesn’t like me?” He plainly has no concept of what the court does. (This would be a good time for the media not to normalize Trump’s conduct but to point out that no president has reacted this way to court decisions. Suggesting that the court decides cases based on whether justices like him is disturbing.)
Trump, however, plainly understands that this week’s second adverse ruling (the first being the court’s ruling Monday that the Civil Rights Act of 1964 bars discrimination against LGBTQ employees) is a body blow to the right, which for decades has invested untold effort and money in trying to produce a Supreme Court that would implement its extreme agenda by legal fiat. The Federalist Society and social conservative groups, which have led the effort to populate the federal courts with ideologues, are failing to a large extent. Their members may get the idea that they are no longer worth supporting.
Even worse from Trump’s perspective, the disappointing results are depriving him of the rationale many Republicans used to justify voting for him (“But Gorsuch ... ”). If they don’t even have that to show after four years of enabling and rationalizing support for a totally unfit president, they might decide Trump’s not worth it. It was unsurprising that Trump rushed forward to assure right-wingers that he had a list (another one!) of conservative judges from which he would select if another court seat opens up.
Aside from crassly anticipating the demise of one or more sitting judges, Trump is actually underscoring his problem with the right: He is no better at “guaranteeing” results than previous Republican presidents. (And if there is a list, might there be another, less unhinged president who can appoint judges the right will like?) For all conservatives’ squawking about results-oriented judging, that is precisely what they have been looking for for decades. They want the courts to facilitate their agendas on abortion, discrimination against the LGBTQ community and immigration and to bless their ahistorical theory about executive branch supremacy.
The federalist machine is sputtering, and with it any rationale to keep Trump in office. No wonder he went on a twitter storm.