Originally published by The New Yorker
To begin with, even judges who aren’t particularly liberal might have balked at the Trump Administration’s sense of what counts as an emergency and of what is “unreviewable” by the courts. This was, after all, an appeal of a district-court decision straight to the Supreme Court, skipping the normal step of going to the appeals-court level before the Supreme Court grants certiorari, as its review is called. The Court has taken cases on that jump-ahead-basis, but only rarely—such as when a strike threatened to shut down much of the country’s steel production, in the 1952 Youngstown Sheet & Tube case (a different era, in terms of the power of both the steel industry and labor unions), and in 1974, when President Richard Nixon refused to hand over certain White House tapes. The standard is that there is “such imperative public importance as to justify deviation from normal appellate practice.”
The Trump Administration, in its brief asking for certiorari, argued that this is such a case, which is, to say the least, an odd claim, since the White House was trying to change a peaceable status quo, not confront a sudden threat. Its argument was simply to repeat that “time is of the essence” and that engaging in discovery and building a record would be a “burden.” Indeed, the entire motion for cert sounds like a Trumpian whine: The courts are so slow and it’s too much work. But that is precisely the point of the courts, when, as a democracy, you might want to put some checks on executive powers. This does not mean that the Administration can’t get what it wants on daca, if it is willing to do the legal work necessary—and if Trump, who has espoused any number of positions, ever figures out exactly what he does want. It just means that the President’s angry tweets might constitute an emergency for the White House staff and the anchors at Fox News, but not necessarily for the Justices.
A similar dynamic was at work at the district court in California, where the case, brought by the University of California, the state of California itself, three other states, and several individual Dreamers, was heard before Judge William Alsup, in January. (There was a similar ruling in Brooklyn.) The Administration’s lawyers tried to argue that its actions, in this regard, are simply unreviewable: the court has no role in saying whether what it does is constitutional or not, when it comes to such questions. The judges in California did not buy this. Nor did numerous judges in cases across the country ruling on the Trump Administration’s travel-ban executive orders (which are also still working their way through the courts), who also rejected the idea of unreviewability. But Donald Trump persists in the idea that the problem is the courts. “Nothing is as bad as the Ninth Circuit,” he said on Monday, referring to the next stop for the California case.
And this leads to another window that the case opens onto the executive branch. The Trump Administration has not shown much adeptness in dealing with its courthouse mistakes. (This raises the question of what kind of legal advice it is getting in other areas, too, such as, perhaps, the President’s personal situation with regard to the special counsel.) One prime reason for this is that the Administration is captive to its own resentments. When Attorney General Jeff Sessions announced the end of daca, in September, he did so on the grounds that President Barack Obama’s Administration never had the right to implement it in the first place. In a letter dated September 4th, Sessions called it an “unconstitutional exercise of authority by the Executive Branch.” There was no real statement of why, on policy grounds, daca might be bad; instead, it spoke to a strain of disparagement of Obama, and of his very legitimacy, that has had a strange grip on the right. It still seems to stand in the way of clear thinking among many in Trump’s circle, even about what their best legal argument for ending daca might be. As Judge Alsup put it, “The main, if not exclusive, rationale for ending daca was its supposed illegality. But determining illegality is a quintessential role of the courts.”
Alsup also found that Sessions had made an “error of law”—because deferred-action executive programs, like daca, have existed since the Eisenhower Administration. Courts have upheld them, and Congress has acknowledged them in related legislation. If the Administration’s rationale is that Obama was a lawbreaker, in other words, that rationale is wrong, and the order ending dacawas “capricious.”
And if that isn’t the rationale, what is? Alsup quoted Trump’s tweets proclaiming his interest in doing something for the Dreamers. If the President was sincere, then he shouldn’t be held back from keeping daca going. If he wasn’t, then his hypocrisy was compounding his Administration’s contempt for Obama, in a way that didn’t play well in court.
Here, there is an echo of the 1952 Youngstown case. Justice Felix Frankfurter argued against granting cert in that case, partly on the grounds that “the government’s argument in the district court was terrible”—so bad, in fact, that it might lead to a broadly bad precedent if the Court ruled in its favor—but its case would be better if presented in the Court of Appeals. (Notes of the discussion appear in “The Supreme Court in Conference, 1940-1985,” edited by Del Dickson.) Frankfurter also said, “My guiding consideration is: What will settle this business?”
That is the question Dreamers ask, as they try to keep their jobs and studies going amid great uncertainty, and it leads to the third branch of government: Congress. The Supreme Court’s action means that Congress has more time to reach some sort of compromise. The majority of Americans say that they want to protect the Dreamers. But vague sympathy won’t get the Dreamers much. And the extension of the March 5th deadline also plays to elected officials’ tendencies toward distraction and dysfunction. Will the next level of rulings come before or after the midterms, in November, and who will have control of the House and Senate then? How much pressure can voters exert in those months? (Are the Dreamers just a bargaining chip for ending family reunification, or for the wall?) The last, sad truth is that Congress’s work doesn’t just fill the time allotted to it; it sometimes simply gives up, even as the lives of young Americans fall apart.