The US Supreme Court’s recent decision on Deferred Action for Childhood Arrivals (DACA) has been discussed mainly in terms of its impact on the Trump administration’s immigration policy. It’s a demonstration of the importance of the court’s role in America’s separation-of-powers regime. And it says something about the current relationship between the law and politics in the US.
The substance of the case concerned one president’s ability (Trump’s) to use his executive powers to roll back another president’s (Obama’s) executive decisions.
And it was significant that Chief Justice Roberts (appointed by George W. Bush – a Republican) voted with the progressive wing of the court to impose administrative requirements on the repeal process, somewhat tougher than the standards imposed on the enactment process (which for the purpose of the decision the court held to be illegal).
This has provoked a higher-than-usual level of criticism from some legal scholars and commentators, asserting that it is in conflict with past practice and indeed some of Roberts’ past decisions.
John Yoo, a Justice Department appointee under George W. Bush, summed up his view:
“President Barack Obama could issue his extralegal visa programs for children and their parents aliens by simple executive fiat, according to Chief Justice John Roberts and four liberal Justices (Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor, and Elena Kagan), but President Trump had to pretend the order was legal and use the slow Administrative Procedure Act to reverse them.”
The National Review went a little further in drawing conclusions:
“If elections for the presidency cannot undo major executive branch policies, why bother having elections at all? And if it is harder to repeal illegal executive actions than to adopt them in the first place, we have completely lost the plot of how a nation of laws is supposed to work.”
While the uncategorisable Richard Epstein saw it as an indefensible decision in a simple case.
You could say that the decision is emblematic of the position of the Supreme Court in a time of acute polarisation – and sympathise with its near-impossibility.
But for Republicans it probably feels a little more personal. For the last 50 years, Republican presidents have proposed three-quarters of the judges appointed to the US Supreme Court. But as this decision suggests, it has hardly been packed. The perception of Republican voters is that there has been a pattern of ‘their’ appointees drifting from their understood principles – and with no traffic coming from the other direction.
Of course, there could be an explanation as simple as establishment bias, liberal cunning or systematic conservative incompetence.
But Epstein is characteristically engaging when he points out that, not for the first time, the liberals reasoned and voted en bloc, and the conservative justices showed much greater intellectual and legal diversity. The implication is that this is a feature of contemporary conservative legal scholarship and, he argues, should Trump make another Supreme Court appointment, there is no guarantee of ‘political reliability’.
One might like to ponder the longer-term implications of a liberal orthodoxy that is consistent and transparent, and a conservative orthodoxy, that is – well – more unorthodox.
One of the reasons for Trump’s success was that he tapped into a sense that the establishment doesn’t always apply the same rules in similar cases. Justice Roberts’ decision seems unlikely to dispel this perception. And it gives American voters who worry about immigration one more thing to fret about at election time.