DACA SURVIVES ON PROCEDURE

Ah, paperwork.

But for improperly prepared documents, the United States Supreme Court likely would have struck down Thursday the Deferred Amnesty for Childhood Arrivals (DACA) program set forth by former President Barack Obama’s executive action eight years ago. Instead, it voted 5-4 to uphold it.

The 2012 action provided temporary protections for children of illegal immigrants — sometimes called “Dreamers” — who were brought into this country by their parents.

Chief Justice John Roberts, writing for the majority, admitted he’d relied on procedure in his opinion, not that you would have heard that or read that in national media reports on the outcome, including a misleading Associated Press report in the Times Free Press.

“The dispute before the Court is not whether [the Department of Homeland Security] may rescind DACA,” he wrote. “All parties agree that it may. The dispute is instead primarily about the procedure the agency followed in doing so.”

He said additionally that “whether DACA is illegal is, of course, a legal determination, and therefore a question for the Attorney General.”

The Associated Press report, carried in this newspaper and elsewhere, said the “justices rejected administration arguments that the” program “is illegal.” But they did not.

“We do not decide whether DACA or its rescission are sound policies,” Roberts wrote. “… We address only whether the agency complied with the procedural requirement that it provide a reasoned explanation for its action.”

Obama, himself, before signing the executive action, said repeatedly he had no constitutional authority to do so.

One of those pronouncements, in July 2011, said this: “Now, I know some people want me to bypass Congress and change the laws on my own. And believe me, right now dealing with Congress, believe me, believe me, the idea of doing things on my own is very tempting. I promise you. Not just on immigration reform. But that’s not how; that’s not how our system works. That’s not how our democracy functions. That’s not how our Constitution is written.”

While Roberts said the administration needed better reasons to repeal DACA than that it is illegal, Justice Clarence Thomas, writing in dissent, said no federal agency should ever need any more reason to end a regulation.

“[DACA] was unlawful from its inception,” he wrote. “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.”

The decision is the third Roberts has written on Trump administration immigration policy — the “Muslim travel ban” and census citizenship questions being the other two — in which he has relied on how the policy process looks to judges rather than the legality of the policy.

Some court observers have said that means the chief justice has developed Washington-itis and does not want to issue unpopular if legal decisions that would be criticized by D.C. media.

Others rightly say the onus was on the administration to get its arguments right in the first place, especially since it was on the right side of the law. Indeed, the administration had updated its DACA argument in 2018 after a lower court judge had dismissed it on procedure in 2017, but the Supreme Court said it was bound to make its decision on the 2017 argument.

The decision on what should happen to Dreamers (now mostly adults) rightly rests with Congress, but under Democratic and Republican leadership it has failed to deal with it. And it’s not likely to do so before November because of 2020’s series of unfortunate events and because Democrats believe Trump is on the ropes.

The president, as is his unhelpful wont, sent mixed messages on what might happen next. Blasting the decision on one hand, he signaled the DACA papers would be refiled, as the court suggested they could be, in order to fully end the program. On the other, he said he was “asking for a legal solution on DACA, not a political one, consistent with the rule of law,” but the administration did not elaborate.

Although illegal immigration is as unpopular as it was when Trump ran in 2016, allowing the Dreamers to stay polls well, people believing they were brought here not of their own volition and that they are now largely contributing to society.

That leaves the president very little solid ground on which to walk. He’s on the right side of the law, but he has little leverage to make a deal about allowing them to stay. And choosing to refile the DACA papers will hearten illegal immigration hard-liners but turn off those who support him on other issues but feel compassion for the individuals brought here as children.

And all for want of proper paperwork.