18 June 2020

Roberts DACA Ruling: An Act Of SCOTUS Repugnant To The Constitution

Roberts DACA Ruling. An Act Of SCOTUS Repugnant To The Constitution
The legacy media could scarcely contain its glee when Chief Justice John Roberts elected to ignore the Constitution and the rule of law to block President Donald Trump's efforts to end Barack Obama's unconstitutional Deferred Action for Childhood Arrivals (DACA) program. Here was proof, they claimed, that the laws are not what Donald Trump says they are, but whatever the Supreme Court says they are.

What the legacy media gets wrong is the same thing Chief Justice Roberts gets wrong: the only standard of law is the Constitution. No act of government which goes against the Constitution can ever enjoy force of law. No act of government which contradicts the Constitution can ever be considered part of the law.

All acts of government repugnant to the Constitution are null and void. That includes Presidential orders and Supreme Court rulings.

DACA Is Unconstitutional

The font of Roberts' error begins with the inescapable reality that DACA itself is illegal and unconstitutional. It has been from the very outset.

Even President Barack Obama recognized that DACA was unconstitutional. He had said as much repeatedly, before ignoring his own words and creating the program anyway.
Responding in October 2010 to demands that he implement immigration reforms unilaterally, Obama declared, "I am not king. I can't do these things just by myself." In March 2011, he said that with "respect to the notion that I can just suspend deportations through executive order, that's just not the case." In May 2011, he acknowledged that he couldn't "just bypass Congress and change the (immigration) law myself. ... That's not how a democracy works."
Congress passed no immigration reform laws between 2011 and 2012, when President Obama issued the DACA executive order. The authority Obama lacked in 2011 he still lacked in 2012.

The authority that President Obama lacked was the power to craft a uniform law on immigration and naturalization. That power resides solely with the Congress, as it is one of the enumerated powers in Article I Section 8 of the United States Constitution. The power of the Presidency lies in the Executive Branch's duty to faithfully execute the laws of the United States as passed by Congress, as established in Article II. The President may decide how he will enforce the law, but he may neither create nor rescind any law.

Had Barack Obama confined himself to merely stating that certain illegal aliens would not be immediately deported, and that government resources would be directed towards other categories of illegal aliens of more immediate concern, the deferred action order would have been constitutional. Unfortunately, neither Barack Obama nor his Department Of Homeland Security Secretary Janet Napolitano confined themselves to merely establishing a policy of deferral. They created a complete government program by which illegal aliens could apply for deferral.
USCIS should establish a clear and efficient process for exercising prosecutorial discretion, on an individual basis, by deferring action against individuals who meet the above criteria and are at least 15 years old, for a period of two years, subject to renewal, in order to prevent low priority individuals from being placed into removal proceedings or removed from the United States. 
This program was not created pursuant to any act of Congress. Congress specifically declined to create such a program. Where the Congress refuses to take particular action, the President may not unilaterally impose such action. At no time does a President obtain the Congressional power to enact new law.

Congress even refused to pass such a program after the fact, when President Trump challenged Congress to take up the DACA issue and do the job to which they were elected--pass legislation to deal with the nation's business.

Furthermore, even Chief Justice Roberts acknowledged that DACA did that which a President does not have the power to do--create new immigration law.
...the DACA Memorandum does not announce a passive non-enforcement policy; it created a program for conferring affirmative immigration relief.
No President may confer "affirmative immigration relief" where such relief is not already enshrined in law. To do so would be a blatant intrusion into the Congress' explicitly enumerated powers.

Roberts ruling defended that which is Constitutionally indefensible.

President Trump Used The Same Powers Obama Did

What President Obama did, President Trump undid, and in the same fashion. As DACA was created by DHS memorandum, in September of 2017 it was rescinded by DHS Memorandum.
This memorandum rescinds the June 15, 2012 memorandum entitled “Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children,” which established the program known as Deferred Action for Childhood Arrivals (“DACA”). For the reasons and in the manner outlined below, Department of Homeland Security personnel shall take all appropriate actions to execute a wind-down of the program, consistent with the parameters established in this memorandum.
The logic of the rescission memorandum was simple: DACA was unconstitutional.
The Attorney General sent a letter to the Department on September 4, 2017, articulating his legal determination that DACA “was effectuated by the previous administration through executive action, without proper statutory authority and with no established end-date, after Congress' repeated rejection of proposed legislation that would have accomplished a similar result. Such an open-ended circumvention of immigration laws was an unconstitutional exercise of authority by the Executive Branch.” The letter further stated that because DACA “has the same legal and constitutional defects that the courts recognized as to DAPA, it is likely that potentially imminent litigation would yield similar results with respect to DACA.” Nevertheless, in light of the administrative complexities associated with ending the program, he recommended that the Department wind it down in an efficient and orderly fashion, and his office has reviewed the terms on which our Department will do so.
The rescission memorandum noted that the lower courts had largely agreed with this view of DACA.
The United States Court of Appeals for the Fifth Circuit affirmed, holding that Texas and the other states had demonstrated a substantial likelihood of success on the merits and satisfied the other requirements for a preliminary injunction.[3] The Fifth Circuit concluded that the Department’s DAPA policy conflicted with the discretion authorized by Congress. In considering the DAPA program, the court noted that the Immigration and Nationality Act “flatly does not permit the reclassification of millions of illegal aliens as lawfully present and thereby make them newly eligible for a host of federal and state benefits, including work authorization.” According to the court, “DAPA is foreclosed by Congress’s careful plan; the program is ‘manifestly contrary to the statute’ and therefore was properly enjoined.” 
Although the original DACA policy was not challenged in the lawsuit, both the district and appellate court decisions relied on factual findings about the implementation of the 2012 DACA memorandum. The Fifth Circuit agreed with the lower court that DACA decisions were not truly discretionary,[4] and that DAPA and expanded DACA would be substantially similar in execution. Both the district court and the Fifth Circuit concluded that implementation of the program did not comply with the Administrative Procedure Act because the Department did not implement it through notice-and-comment rulemaking.
Note that the courts had already ruled also that the establishment of the DACA program violated the Administrative Procedure Act (5 USC Subchapter ii), which is the same statute Chief Justice Roberts used to defend DACA's existence. 

Chief Justice Roberts ruled that a program illegally conceived and illegally implemented was legally protected.

Irony abounds.

Roberts Blatantly Ignored The Constitution And The Courts

The Constitution is explicit in assigning to the Congress the power to enact immigration law. This authority is one of the enumerated powers found in Article I Section 8.
To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes; 
To establish an uniform Rule of Naturalization, and uniform Laws on the subject of Bankruptcies throughout the United States;
Congress has the sole power to decide who may enter the United States, and Congress has the sole power to decide who may remain in the United States and become a United States citizen. This is indisputable.

Yet Roberts explicitly concedes that DACA is an executive decision on who may remain in the United States.
...the DACA Memorandum does not announce a passive non-enforcement policy; it created a program for conferring affirmative immigration relief.
This text should have been in an argument affirming DACA's inherent illegality and unavoidable unconstitutionality, yet Chief Justice Roberts is defending DACA and ruling against its termination.

Roberts compounds this error of construction with additional errors of logic. Most notably, he excoriates Acting DHS Secretary Elaine Duke for following the Attorney General's decision that DACA was illegal.

To appreciate the lunacy of this position, first consider Roberts' own admission that the DHS Secretary is required to follow the Attorney General's guidance on matters of law.
The same statutory provision that establishes the Secretary of Homeland Security’s authority to administer and enforce immigration laws limits that authority, specifying that, with respect to "all questions of law," the determinations of the Attorney General "shall be controlling." 8 U.S.C. §1103(a)(1).
However, in the world according to Roberts, such a finding is a beginning, not an ending. In the world according to Roberts, once a program is deemed illegal, the DHS Secretary must then decide what to do with the program.
Whether DACA is illegal is, of course, a legal determination, and therefore a question for the Attorney General. But deciding how best to address a finding of illegality moving forward can involve important policy choices, especially when the finding concerns a program with the breadth of DACA. Those policy choices are for DHS.
In the world according to Roberts, it is a "policy choice" for the DHS to decide whether or not to act on an Attorney General finding of illegality. In other words, the Attorney General gets to decide if the program is legal, but it is the DHS Secretary who decides whether or not anything should be done about it.

The word to apply to this sort of reasoning is simply this: insane. A program which is illegal cannot continue without flouting the law and disregarding the very guidance the DHS Secretary is legally bound to follow. If DACA is illegal (and it is), the DHS Secretary has exactly one move to make: terminate the program. There is not a second option available, not in law and not in logic. Contrary to the learned Chief Justice Roberts, following the law is not a "policy choice."

Because Acting Secretary Duke elected to follow the guidance of the Attorney General, she is singled out for especial criticism by Chief Justice Roberts:
But Duke did not appear to appreciate the full scope of her discretion, which picked up where the Attorney General’s legal reasoning left off. 
In other words, because Acting Secretary Duke did not  attempt to subvert the Attorney General by expansive use of her "discretion", her actions were "arbitrary and capricious".

Consider the meaning of the word "arbitrary":
existing or coming about seemingly at random or by chance or as a capricious and unreasonable act of will
Consider the meaning of "capricious":
governed or characterized by caprice 
Just to be thorough, note the definition of "caprice".
a sudden, impulsive, and seemingly unmotivated notion or action
Chief Justice Roberts claims that Acting Secretary Duke acted randomly and impulsively by dutifully following the directive of the Attorney General which he in the same paragraph acknowledged she was legally bound to follow.

The reasoning which is capricious here is Chief Justice Roberts, not Elaine Duke's.

Chief Justice Roberts is also guilty of multiple factual mis-statements, such as when he claimed that Elaine Duke acted "without explanation".
She instead treated the Attorney General’s conclusion regarding the illegality of benefits as sufficient to rescind both benefits and forbearance, without explanation.
This is pure absurdity. Acting Secretary Duke provided an entire memorandum of explanation. The explanation was simple and straightforward: DACA was illegal, and therefore had to be shut down forthwith. That may not be an explanation people like, but it is unquestionably an explanation, and it is unquestionably the correct explanation.

Additionally, Acting Secretary Duke did not rescind "forbearance." She modified it, as was clearly articulated within the memorandum:
  • Will adjudicate—on an individual, case-by-case basis—properly filed pending DACA initial requests and associated applications for Employment Authorization Documents that have been accepted by the Department as of the date of this memorandum.
  • Will reject all DACA initial requests and associated applications for Employment Authorization Documents filed after the date of this memorandum.
  • Will adjudicate—on an individual, case by case basis—properly filed pending DACA renewal requests and associated applications for Employment Authorization Documents from current beneficiaries that have been accepted by the Department as of the date of this memorandum, and from current beneficiaries whose benefits will expire between the date of this memorandum and March 5, 2018 that have been accepted by the Department as of October 5, 2017.
  • Will reject all DACA renewal requests and associated applications for Employment Authorization Documents filed outside of the parameters specified above.
  • Will not terminate the grants of previously issued deferred action or revoke Employment Authorization Documents solely based on the directives in this memorandum for the remaining duration of their validity periods.
  • Will not approve any new Form I-131 applications for advance parole under standards associated with the DACA program, although it will generally honor the stated validity period for previously approved applications for advance parole. Notwithstanding the continued validity of advance parole approvals previously granted, CBP will—of course—retain the authority it has always had and exercised in determining the admissibility of any person presenting at the border and the eligibility of such persons for parole. Further, USCIS will—of course—retain the authority to revoke or terminate an advance parole document at any time.
  • Will administratively close all pending Form I-131 applications for advance parole filed under standards associated with the DACA program, and will refund all associated fees.
  • Will continue to exercise its discretionary authority to terminate or deny deferred action at any time when immigration officials determine termination or denial of deferred action is appropriate.
The memorandum did not call for all persons currently under DACA to be deported. Quite the opposite.

Additionally, Chief Justice Roberts flatly accuses Acting Secretary Duke of not making crucial decisions within her ambit as (Acting) DHS Secretary:
These are certainly noteworthy concerns, but they are not necessarily dispositive. To the Government and lead dissent’s point, DHS could respond that reliance on forbearance and benefits was unjustified in light of the express limitations in the DACA Memorandum. Or it might conclude that reliance interests in benefits that it views as unlawful are entitled to no or diminished weight. And, even if DHS ultimately concludes that the reliance interests rank as serious, they are but one factor to consider. DHS may determine, in the particular context before it, that other interests and policy concerns outweigh any reliance interests. Making that difficult decision was the agency’s job, but the agency failed to do it
This assertion is pure garbage. Acting Secretary Duke clearly did recognize the impacts to people who had acted in good faith within the illegal DACA program. Had she not done so, there would be no winding down of the program, as under that logic there would be no legitimate concerns to be addressed. Had she not considered the impacts of the termination of DACA, the program would simply have been terminated without delay. 

Instead, as the steps Elaine Duke directed USCIS to take explicitly outline, the rescission memorandum did not categorically terminate all Employment Authorizations and other benefits illegally conferred by DACA. It merely ended both the conference of those benefits on new applicants and the renewal of those benefits by existing applicants within the procedures established by DACA, while providing for case-by-case adjudication of applications and renewals already initiated. By definition, such steps are the exact weighing of interests Chief Justice Roberts says the rescission memorandum needed to have to conform to the strictures of the APA.

The rescission memorandum in plain English did exactly the thing Chief Justice Roberts says it did not.

Roberts' assertion of caprice rests on factual errors of his own making. The caprice is Roberts', and not the government's--certainly not Acting Secretary Duke's.

I take a certain pride in the fact that these arguments are among those rendered (in far greater legal detail) by Justice Clarence Thomas in his stirring dissent from Chief Justice Roberts unconscionable and unconstitutional ruling:

Justice Thomas confirms the illegality of DACA itself:
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. The majority does not even attempt to explain why a court has the authority to scrutinize an agency’s policy reasons for rescinding an unlawful program under the arbitrary and capricious microscope. The decision to countermand an unlawful agency action is clearly reasonable. So long as the agency’s determination of illegality is sound, our review should be at an end.
Justice Thomas confirms that Chief Justice Roberts mis-applied the law:
Perhaps even more unfortunately, the majority’s holding creates perverse incentives, particularly for outgoing administrations. 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. In other words, the majority erroneously holds that the agency is not only permitted, but required, to continue administering unlawful programs that it inherited from a previous administration. I respectfully dissent in part. 
Justice Thomas also highlights the factual errancies of Chief Justice Roberts' ruling:
DHS did provide a sufficient explanation for its action. DHS’ statement that DACA was ultra vires was more than sufficient to justify its rescission.
I encourage everyone to read Justice Thomas dissent in detail, but for now it is enough to say that Justice Thomas' reasoning demonstrably dovetails with my own. Mine is hardly a lone voice in the wilderness on this matter.

Roberts mis-applies the Constitution, mis-applies the law, and mis-states the facts. His final ruling is itself not merely repugnant to the Constitution, but odiously and execrably so.

That Which Is Repugnant To the Constitution Is Void

Perhaps the most oft-cited of Supreme Court rulings is Chief Justice John Marshall's Marbury v Madison (5 US 137):
Certainly all those who have framed written Constitutions contemplate them as forming the fundamental and paramount law of the nation, and consequently the theory of every such government must be that an act of the Legislature repugnant to the Constitution is void.
The United States Constitution is unquestionably the "fundamental and paramount law of the nation". We do not need to rely on Chief Justice Marshall's reasoning to see this, as Article 6 states this outright:
This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.
The Constitution is the supreme law of the land, and neither Presidential order nor Supreme Court ruling can ever be superior to it. The text of the Constitution itself makes that plain.

If a Supreme Court ruling is wrong, if it attempts to supersede the Constitution, it necessarily and immediately loses all validity and operative force. As with an act of the legislature, and as with a Presidential order, such erroneous rulings are inherently void from the outset.

Following Marshall's logic, as I have stated before, while the courts may have a duty to say what the law is, it falls to the people--through the Congress, through the States, and through themselves--to say what the law is not, and what the law should be. If the Supreme Court's ruling is plainly in contravention of the Constitution, as Chief Justice Roberts' ruling on DACA clearly is, it falls to the people to declare that ruling unconstitutional, and thus deprive it of operative force. 

Chief Justice John Roberts ruling is wrong. Not only should it not stand, it should not even be acknowledged. It has no force of law. It is, from its first articulation, null and void.

We The People say what the law is not, and We The People should say that Roberts' DACA ruling is not the law.

19 June 2020: updated the flaws in Roberts' legal reasoning with additional detail on his factual mis-statements regarding the DHS rescission memorandum.
19 June 2020: updated to include reference to Justice Thomas dissenting opinion.

1 comment :

  1. “I used to get upset by people not understanding me, but I’ve made a career out of it now.” – Ozzie Osbourne길동노래방


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