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Posted: 2020-06-18 20:04:13

Sotomayor was alone in arguing that “‘the words of the President’ help to ‘create the strong perception’ that the rescission decision was ‘contaminated by impermissible discriminatory animus.’” In a one-page concurrence, she pointed out that Trump has described Mexican immigrants as “‘people that have lots of problems,’ ‘the bad ones,’ and ‘criminals, drug dealers, [and] rapists,’” and as “‘animals’ responsible for ‘the drugs, the gangs, the cartels, the crisis of smuggling and trafficking, [and] MS13.’” The other four justices in the majority dismissed those statements as “unilluminating.”

Two things are now clear. First, the nearly 700,000 DACA recipients currently in the program need not fear lightning Immigration and Customs Enforcement raids for a while longer. Second, their fate, like so much else that matters in American life, will be squarely on the November presidential ballot.

The administration’s basic approach to administrative procedures was unwittingly summed up best by Trump himself in March. Asked whether he took responsibility for the federal government’s botched response to the coronavirus pandemic, he proclaimed, “I don’t take responsibility at all.” It was all the fault of regulations and decisions made by Barack Obama, Trump explained.

Major Trump decisions are always someone else’s fault. In the census case, the citizenship question wasn’t added for any political or even policy reason—it was there, the administration insisted with a nearly straight face, because the Department of Justice insisted that it needed the question to enforce the Voting Rights Act. Four justices pretended to believe that, but Roberts wouldn’t go that far.

In the case of DACA, Attorney General Jeff Sessions announced on September 5, 2017, that the rescission was necessary because DACA had been created by the Obama administration “without proper statutory authority,” and thus constituted “an unconstitutional exercise of authority by the executive branch.”

There were, and are, respectable arguments to be made that he was right. But the fact is, Sessions didn’t bother to make them. And when Acting Homeland Security Secretary Elaine Duke followed up with an order winding down DACA, she didn’t either.

The cursory argument, unaccompanied by detailed analysis, was that the Fifth Circuit Court of Appeals had struck down a different, later, and much larger program called Deferred Action for Parents of Americans (DAPA). That decision was affirmed by a 4–4 decision of the Supreme Court in 2016, then one justice short.

Sessions said that the DAPA decision meant that DACA too was unlawful. He didn’t bother to explain why. But the DAPA program was significantly different from DACA, and the reasons the appeals court gave for striking down DAPA didn’t apply to DACA. It was, all in all, a Lionel Hutz–level performance by the attorney general.

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