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Comment by anilshanbhag | Hacker News Reader

It increasingly seems like the Supreme Court of the US is becoming a political theatre because Congress can't get its act together. Supreme Court shouldn't legislate but it is forced to as lawmakers in Congress can't do their job.

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What was legislated here?

They ruled that the White House didn't follow the existing legislation.

My understanding is that DACA originally was entirely created out of an executive order, ie: there is no legislation backing it. The main argument I've seen is that it was created out of the executive, so any future executive should be able to come forward and revoke it, assuming they follow the proper comment process and notices.

That'd be the Executive legislating, not the Court.

The Court said the procedure for revoking that order didn't follow the Administrative Procedure Act. They didn't rule at all on the legality of the order itself, in either direction.

The legislation requires the administration to justify its actions. The creation of DACA provided such a justification, the repeal didn't. So stopping the repeal is just temporary. The Trump administration will try again, just like they did with the Muslim ban, and eventually they will succeed unless the clock runs out first.

> The creation of DACA provided such a justification

Did the Court have an opinion on this in this ruling? I thought it didn't, in which case the creation of DACA has never been held to this "arbitrary and capricious" standard.

I don't know. It's possible that the justification for the creation of DACA was just as deficient as that for its repeal but that no one ever bothered to challenge it in court. I don't know the history. But given how rabid Republicans have been at challenging everything else Barack Obama ever did, that seems improbable to me.

I think what happened is some States that wanted it gone told the Attorney General that they would challenge it as a violation of the APA unless it was rescinded, but then it was rescinded, so that lawsuit was never filed.

EDIT: it was filed, not sure if it's still pending or what, see https://news.ycombinator.com/item?id=23565025

> The creation of DACA provided such a justification, the repeal didn't.

I quoted this below from Justice Clarence Thomas, but it also directly responds to your point;

> DHS created DACA during the Obama administration without any statutory authorization and without going through the requisite rulemaking process. As a result, the program was unlawful from its inception.

That’s from the dissent. The majority ignored this like it doesn’t matter. Rules for thee but not for me.

You should consider the possibility that the majority ignored it because it isn't true. DACA started in 2012 so the Republicans had four years to mount a legal challenge on those grounds. The fact that they didn't is evidence that Thomas is simply wrong.

The judicial history is complex. Expanded DACA from 2014 actually was challenged under APA grounds, the 5th circuit upheld the stay, it went to the Supreme Court, which ruled 4-4 on it meaning the 5th court ruling stood which held that it violated APA;

> On November 9, 2015, a divided panel of the Fifth Circuit Court of Appeals upheld the district court’s order granting the preliminary injunction. The majority accepted the lower court’s findings that Texas has standing to bring this lawsuit based on the additional costs it would incur to issue driver’s licenses to beneficiaries of expanded DACA and DAPA. The court acknowledged that judicial review is unavailable under the APA where a matter is committed to agency discretion and that the government’s immigration enforcement priorities fall squarely within this category; nonetheless, the majority also found that the plaintiff states were likely to prevail on their claim that the federal government should have pursued notice-and-comment rulemaking because DAPA and expanded DACA determinations are non-discretionary. In addition, the majority held that the new deferred action initiatives are arbitrary and capricious because the federal government did not have authority to promulgate them under the Immigration and Nationality Act.

[1] - https://www.americanimmigrationcouncil.org/research/legal-ch...

The majority may simply disagree, and it's irrelevant to the legal matter before the Court - whether rescission was lawful.

"He started it" isn't really a legal doctrine, either.

What existing legislation? There was none to begin with

The Court says the White House violated the Administrative Procedure Act in how they rescinded the DACA order.

https://en.wikipedia.org/wiki/Administrative_Procedure_Act_(...

DACA itself was not legislated. It was an executive order issued by President Obama. Live by the sword, die by the sword. It's well within the power of the President to rescind a previous President's executive orders.

Honestly the court copped out of addressing the issue. The correct ruling would be to uphold the rescinding of DACA and force Congress's hand to act on the issue. Just because the intermediate outcome is not pretty does not mean an action is wrong.

> It's well within the power of the President to rescind a previous President's executive orders.

To a point.

The SCOTUS opinion here decides that DACA constituted a new program, and that the APA establishes legal requirements when canceling a program that the Trump administration did not follow.

They didn't decide either way on whether the Trump administration can rescind the program - it's likely they'd decide Trump can. They just decided he didn't follow the rules properly when he did it.

> They didn't decide either way on whether the Trump administration can rescind the program - it's likely they'd decide Trump can. They just decided he didn't follow the rules properly when he did it.

That's why this is such a terrible decision. They went out of their way to find a reason to not address the case itself.

If the precedent this sets is that subsequent President's executive actions will take more than a full term to work through the courts to rescind, you can be damn well sure that Trump will take advantage of that on the way out.

> They went out of their way to find a reason to not address the case itself.

I wouldn't put this on the Court. They're not supposed to rule on questions that aren't before them.

DACA opponents are welcome to file suit against DACA alleging it was illegally created/implemented. That they relied on Trump to just rescind it, and got burned by the administration's incompetence in doing so, is on them, not the Court.

The opinion here reads very much like the Court is a high school teacher disappointed in the efforts of a lazy student. The Administration should have known the rules and followed them. They didn't and got called out for it.

There is literally nothing stopping the DHS from actually following the rules, but in order to do so they're going to have to detail the affects of their proposed rule change on the DACA recipients.

I've heard argument pretty often, usually as rationale for the policy decisions taken by the Obama administration. Its flat wrong in the case of DACA.

Congress has acted as a deliberative body and discussed wide-ranging immigration reform packages several times over the last two decades. They couldn't come to an agreement specifically because the legislature's makeup correctly reflects the disagreements among their respective constituents.

Not-a-bug / working-as-intended.

Why ought judges not legislate?

https://law.lclark.edu/live/files/9581-lcb111peabodypdf

"I recognize without hesitation that judges do and must legislate, but the legislatures should be hampered by limitations only if they are found in the plain words of the constitution."

-- Chief Justice Oliver Wendell Holmes.

Because judges are not elected officials are are not accountable to the voting public for their actions. They shouldn't legislate from the bench for the same reasons that unelected dictators are considered a bad thing

They're absolutely accountable. The process is intentionally difficult - we'd have to push our elected representatives to impeach (or pack the court), and that's a high bar - but they're hardly dictators.

Also most judges are elected, and there's a blurry line on legislative powers and duties between all three branches of US government.

Most state judges have to stand for election at some point.

Where is that quote from? In his dissent in Southern Pacific Co. v. Jensen, Holmes said "I recognize without hesitation that judges do and must legislate, but they can do so only interstitially; they are confined from molar to molecular motions." Assuming a plain reading of his analogy through chemistry, he's saying that they can "legislate" when the law leaves a situation undefined and they must reason through analogy.

The Supreme Court is inherently political. They deal with cases where judges before them disagreed. That said briefs are useful to understand their arguments. Congress should do more... but they consistently do not.

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