Stop me if you’ve heard this one before, but…Thursday, Chief Justice John Roberts sided with the liberals on the Supreme Court in a 5-4 decision, ruling that President Trump’s attempt to rescind Obama's DACA program is unlawful – even though Obama repeatedly stated that he had no constitutional authority to create it before going ahead and doing so.
The Court ruled that Trump didn’t give a good enough reason for why he rescinded it. Roberts wrote, "We do not decide whether DACA or its rescission are sound policies. The wisdom of those decisions is none of our concern. We address only whether the agency complied with the procedural requirement that it provide a reasoned explanation for its action."
Just off the top of my head, how about: “It's illegal because the President has no constitutional power to invent new immigration laws”?
The story at the link states, “No one disputes that the President has the power to end DACA. Instead, the focus of Thursday's case is whether administration officials followed procedural rules when terminating the program.” Actually, a lot of people disputed that Trump has that power, mostly based upon their delusional belief that Trump isn’t really President. The “reasoned explanation” argument was just the excuse that they thought might pass muster in courts, if they could find enough liberal judges. I can almost picture their attorneys leaving the SCOTUS, high-fiving each other and saying, "I can't BELIEVE they bought that!"
Personally, I have supported something similar to DACA in the past. I think it’s wasteful and cruel to send kids who were brought to the US by their parents when they were small and have only known America back to nations where they have no place and might not even speak the language, particularly after the state has already paid to educate them to the point when they’re about to become employed taxpayers. But this was NOT the way to deal with it. Letting a President simply ignore the Constitutional separation of powers as if his office conveys magical abilities is not the way to handle it, nor is restricting the powers of future Presidents from undoing the unconstitutional actions of previous Presidents unless they say “Mother, may I?” convincingly enough to a judge.
In the dissent, Justice Thomas, one of a dwindling number of SCOTUS members who remembers what the Constitution is and cares what words mean, warned that the Court’s decision means future presidents will be stuck with illegal policies inherited from their predecessors:
"Under the auspices of today’s decision, administrations can bind their successors by unlawfully adopting significant legal changes through executive branch agency memoranda. Even if the agency lacked authority to effectuate the changes, the changes cannot be undone by the same agency in a successor administration unless the successor provides sufficient policy justifications to the satisfaction of this Court."
I refer you again to Sen. Josh Hawley’s speech warning that we have become a nation in which laws are no longer made by the elected Representatives of the people but by unelected bureaucrats and judges who think that wearing a robe makes them wizards. I guess now we can add rogue Presidents to that list. Everyone can make laws except our lawmakers.
The good news: if Trump wants to bypass the Democratic House and create laws and programs by executive order, he can now feel free to go ahead, knowing that his successors can only do away with them if they can come up with a reason better than “But this is plainly UNCONSTITUTIONAL!!” As Roberts first signaled when he twisted the law into a pretzel to uphold Obamacare, that’s no longer a convincing enough reason for the SCOTUS to overturn something.
As for what to do about the SCOTUS, it's obvious that having Justices appointed by Republicans, even by Trump, is no guarantee that they'll protect the Constitution. But letting the Democrats have the Presidency and Senate would be exponentially worse. As law professor/blogger David Bernstein (who called the DACA decision "a very dangerous ruling" and "a very bad day for the separation of powers") said, the best insurance against 5-4 liberal decisions thanks to a rogue conservative Justice is to have a 7-2 or higher conservative bench.