In a signature passage from Department of Commerce v. New York, the ruling invalidating Donald Trump’s push for a citizenship question on the 2020 Census, Chief Justice John Roberts offered a layman’s explanation for why lies and obfuscation, no matter how official sounding, simply can’t form the basis for certain kinds of government decision-making. “The reasoned explanation requirement of administrative law,” Roberts wrote, “is meant to ensure that agencies offer genuine justifications for important decisions, reasons that can be scrutinized by courts and the interested public.” In that same section, he threw in a citation to a 1972 opinion by his erstwhile boss, the legendary federal appeals judge Henry Friendly, who had once observed that courts are “not required to exhibit a naïveté from which ordinary citizens are free.”
If there’s a name for these principles, it’s political accountability. Roberts will yet again have an opportunity to apply them, this time in a trio of cases testing the legality of Trump’s dogged attempt to end the Deferred Action for Childhood Arrivals program — which itself is part of his broader agenda to reverse everything his predecessor did, even things he likes and agrees with, only to please his base and Stephen Miller.
Except you won’t hear the president own up to his true motivations in this or other contexts. Courts can and must examine them. At the time Trump sought to wind down the DACA program, his cowardice was on full display — he reportedly agonized over the fate of the so-called Dreamers, whom opinion polls have consistently favored, only to later dispatch then–Attorney General Jeff Sessions to finish the work for him. What Trump never dared say out loud rolled off Sessions’s tongue: These productive young people, Americans in nearly every sense but their paperwork, were “mostly adult illegal aliens,” according to Sessions, here to take other people’s jobs and to serve as a magnet for other young migrants wishing to cross the southern border.
Sessions’s voice still carried singular force. Federal law grants the attorney general’s views “controlling” strength in immigration matters. And Sessions’s ultimate legal position was that DACA was unconstitutional, an executive usurpation of congressional authority, and a litigation risk — all because one appeals court had already ruled that a similar but unrelated Obama program was unlawful. Elaine Duke, the acting Homeland Security secretary when Trump sought DACA’s demise, was bound by this determination — so she issued her own memorandum more or less regurgitating Sessions’s legal conclusions and ordering the program’s cessation. One thing she did not do was sign on to Sessions’s fearmongering: Border Wars, a new book by Michael Shear and Julie Hirschfield of the New York Times, sheds light on how Duke staged a rebellion of sorts, refusing to sign her name to a rescission memorandum that advanced hard-line policy positions she couldn’t in good conscience get behind.
What Duke did end up signing is now before the Supreme Court. Two federal judges and one appeals court in different corners of the country concluded that her purported reasons for ending DACA — namely, Sessions’s blanket belief that it’s illegal and indefensible in court — can’t withstand scrutiny, because a claim of unlawfulness, standing alone, doesn’t cut it. Calling something illegal over and over doesn’t make it so, let alone count as a valid policy reason for terminating a program that otherwise shielded more than 700,000 people from deportation and created what the law calls reliance. That word, reliance, came up dozens of times on Tuesday as the justices grappled with whether Trump and his administration had properly accounted for the dramatic ripple effects of winding down DACA — not just on so-called Dreamers, who stand to lose their livelihoods if DACA goes away for good, but on the numerous organizations, businesses, and local governments that would also suffer inexorably if Trump gets his way.
In droves, all of these actors — from the Mexican government to universities to business interests and the tech industry — inundated the Supreme Court with amicus briefs, nearly all of them effusive in their support of DACA recipients. At one point, Justice Stephen Breyer began listing off these entities and wondered whether the Trump administration’s position was “adequate” to respond to their fears about the program’s doom. “When an agency’s prior policy has engendered serious reliance interests, it must be taken into account,” Breyer said, pointing to an earlier decision in which Justice Antonin Scalia had made the same point. During an exchange with Ted Olson, the powerhouse conservative lawyer enlisted to stand up for Dreamers before the court, Justice Neil Gorsuch acknowledged the “sympathetic facts” behind their plight, which he said “speak to all of us.” But he seemed skeptical that there was much more the Trump administration could do to end DACA the right way. “What more would you have the government say about those reliance interests?” he asked. “If it’s a failure of adequacy of explaining, what more is left to be said?”
The Supreme Court shouldn’t be afraid of making Trump do his homework — on DACA or anything else. If there’s a feature of the Trumpian administrative state, it is not so much its deconstruction but how the courts have systematically found that it doesn’t follow the rules of administrative law, a set of long-settled guidelines of how good government ought to work. John Bates, a federal judge whom Chief Justice Roberts knows and respects, suggested in his own ruling invalidating how Trump went about ending DACA that he might have been able to get away with it had his administration declared from the start that its decision “reflected a change in the agency’s immigration-enforcement priorities.” Tell the world you’re anti-immigrant and embrace the consequences. Instead, Bates wrote, the government offered only “conclusory statements” about DACA’s illegality and an “implausible” prediction that keeping DACA on the books would result in a losing court battle. Since neither of those is a sound policy reason, the judge thought, Trump couldn’t move forward with the plan. And courts could hold him accountable by making him show his work.
But before the Supreme Court, much of Bates’s reasoning didn’t seem to carry the day. Roberts himself suggested there wasn’t much that he and his colleagues could ask of the Trump administration. In 2016, eight justices, sans the late Scalia, split bitterly over a related program by President Obama meant to shield from deportation the undocumented parents of American citizens and permanent residents. Roberts pondered whether that split decision, which had nothing to do with DACA, suffices to render Trump’s judgment valid. “Can’t he just say that’s the basis on which I’m making this decision?,” Roberts asked, all but implying that he’s ready to defer to the president yet again. Hours earlier, a belligerent chief executive had finally made plain how he really feels about the Dreamers he once professed to care about: “Many of the people in DACA, no longer very young, are far from ‘angels,’” he wrote on Twitter. “Some are very tough, hardened criminals.”
The difficulty of assessing how the Supreme Court will come down in the controversy over DACA lies in the two worlds the justices and the rest of us inhabit. One of them is bound by precedent, legal argumentation, and the strictures of the law. If the justices need a clear road map for action there, Judge Bates and other courts have offered it: Trump can’t cite the law and escape responsibility for a monumental political decision. The other world is the one in which Trump’s incompetence and contempt for noncitizens guide each and every one of his immigration actions — this is evident in the tweets, the closed-door meetings, and Miller’s unlikely permanence in the White House. On Tuesday, only Justice Sonia Sotomayor seemed to grasp the reality of both worlds when she confronted Noel Francisco, Trump’s solicitor general, and asked him point-blank where in the memorandum laying out the reasons for DACA’s downfall does the “current president” take ownership for his decision. “Where is the political decision made clearly that this is not about the law — this is our choice to destroy lives?,” she asked.
Francisco didn’t have a good answer for that. But later on, pressed by Justice Ruth Bader Ginsburg, he finally conceded that, no, it wasn’t just the law that had made Trump terminate DACA — and with it visit disruption and destruction on the lives of Dreamers. As if putting words in the president’s mouth, Francisco said, “We own this.” The Supreme Court too will have to own this. Because for better or for worse, whatever a majority of the justices conclude will reflect how the United States government treats those who are here through no fault of their own and who have made America their home. Neither Trump nor the justices will be able to hide behind legalese.