Chief Justice John Roberts has come to liberals’ rescue again, this time providing the decisive fifth Supreme Court vote to strike down the Trump administration’s rescission of DACA, the Deferred Action for Childhood Arrivals program.
It’s morally uplifting that dreamers now won’t have to live under threat of deportation; and it’s unlikely that President Donald Trump will be able to rescind DACA, with new justifications, before he leaves office.
But don’t think that Roberts was motivated by any liberal sympathy for Dreamers. The best explanation for his ruling is that Roberts is fed up with Donald Trump’s disrespect for the rule of law. Now he’s standing up for the role of the judicial branch of government in checking careless, lawless action by the executive.
Earlier in Trump’s presidency, Roberts made the mistake of deferring to presidential authority in the Muslim travel ban case, Trump v. Hawaii. Roberts was probably gambling then that he could reach a kind of unspoken accommodation with the president: If Trump would show respect for the courts and try to achieve his policy aims through proper legal means, Roberts would provide his swing vote to the court’s conservatives and uphold the president’s decisions.
But Trump never acquiesced in the implicit bargain that Roberts was offering. He continued to criticize the courts, including by referring to “Obama judges” — a comment that elicited an extremely rare formal statement of disagreement from Roberts.
Subsequently, Roberts seems to have realized that Trump’s assault on the rule of law must be met with judicial supervision. The DACA decision exemplifies that supervisory authority. It’s part of an evolution that began a year ago, last June, when Roberts blocked the Trump administration from adding a citizenship question to the 2020 census on the basis of the administration’s misleading claims about its justification for doing so.
Thursday’s decision, DHS v. Regents of the University of California, is based in the same statute as the census decision, namely the Administrative Procedure Act. Courts use that law to review government action and determine if it is “arbitrary and capricious.” In practice, that means that the government must provide a satisfactory rationale to explain its action.
Roberts’s opinion held that the Trump administration failed to offer a sufficiently detailed, clear and logical justification for rescinding DACA. The Department of Homeland Security initially said it was rescinding the program because it was unlawful in light of a decision by the U.S. Court of Appeals for the Fifth Circuit striking down a similar program aimed at dreamers’ parents rather than the dreamers themselves.(1)
Roberts focused on the fact that the Fifth Circuit only said it was unlawful for the president to extend work authorization to the program’s beneficiaries. The appeals court didn’t say there was anything wrong with not bothering to deport them.
Roberts pointed out that DHS had said that it had to cancel DACA altogether, when it could plausibly, even within the contours of the Fifth Circuit decision, have taken the more moderate route of rescinding work authorization from dreamers but not deporting them. In essence, he held that the Trump administration had acted arbitrarily and capriciously by failing to justify its policy decision to rescind the program entirely and push for deportation.
I admit to having been a skeptic of this line of argument when it was first being pressed in the lower courts by DACA supporters. It seemed to me that if Barack Obama had the discretion to initiate DACA, then Donald Trump must have the discretion to rescind it. But colleagues like Cass Sunstein, who urged me to take more seriously the administrative law doctrine that requires a complete and adequate explanation for government decisions, were right. And Roberts fully embraced the administrative law angle.
In response to the ruling, Trump tweeted, “Do you get the impression that the Supreme Court doesn’t like me?” He’s not totally wrong. Roberts, having sat through the impeachment proceedings in the Senate, has had plenty of opportunities to reflect on Trump’s utter unwillingness to respect legal procedures and the rule of law itself.
It’s not personal from Roberts’s perspective. It’s business. Roberts’s business is defending the judicial branch and its role as guarantor of the rule of law. Trump has demonstrated his contempt for judges, the judiciary, and law itself.
None of this means that Roberts has become some sort of a liberal. It remains entirely possible that he will join the conservatives in future high-profile cases, as he has often done in the past.
But when it comes to cases during the Trump presidency that involve the court’s role as supervisor of the legality of executive action, it’s fair to say that Roberts’s vote is now reliably against the Trump administration. Trump has earned his distrust, if not his dislike.
(1) After Justice Antonin Scalia’s death, the Supreme Court divided 4-4 on whether to uphold or overturn that decision, thus leaving it in place.
Noah Feldman is a Bloomberg Opinion columnist and host of the podcast “Deep Background.” He is a professor of law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include “The Three Lives of James Madison: Genius, Partisan, President.”
