Arbitrary and Capricious
David and Sarah discuss the Supreme Court's ruling that blocks the Trump administration from ending DACA for now, return to their discussion over the Title VII ruling, and finish with the legal fight over John Bolton's book.
Show Notes:
-Cass Sunstein on Gorsuch Title VII opinion
-Atlanta Journal-Constitution piece on Bostock
-David's piece A Conservative Legal Chernobyl?
See omnystudio.com/listener for privacy information.
Here's what strikes me about the DACA ruling:
In the DAPA case, the 4 progressive justices are on record as believing that instituting DAPA did NOT violate the Administrative Procedures Act. Those same 4 justices have now signed on to a decision that rescinding a nearly identical program DOES violate the APA. That is some impressive intellectual pliability.
It seems like only one wing of the court seems bound by judicial philosophy. All a petitioner on the progressive side of a case has to do is come up with a process argument that at least one justice on the conservative side will buy into, since the votes of the 4 progressive justices are not in jeopardy. Does anyone seriously believe that Breyer, Ginsburg, Kagan and Sotomayor would apply the same APA standards if it meant the outcome disfavored a progressive policy?
Think of this counter-factual: the Trump administration issues a memorandum creating a program called Deferred Accounting for Productive Assets, that allows for accelerated depreciation of capital goods to reduce corporate taxes, even though Congress had recently considered and rejected this tax treatment. It directs the Treasury Dept to issue amnesty letters to companies that use this program to reduce their taxes.
In the first year of the Biden administration, the program is rescinded by memorandum, and affected corporations sue to enjoin the rescission. Is there any doubt that the case would lose 9-0?
I have another theory about the DACA decision. As David explains, DACA was essentially "created with a memo" in violation of the APA. Then DAPA is "created with a memo" as well. Roberts votes against DAPA because it violates the APA. Now here comes the Trump administration and they decide to "rescind with a memo." In all three instances Roberts has been consistent on the process. He said creating DAPA with a memo is not legal. He also apparently thinks creating DACA with a memo is not legal. Following that logic, you cannot then simply rescind DACA with a memo, because all three methods violate the law.
If Roberts allows the Trump administration to violate the APA in getting rid of DACA, then you are essentially arguing that it was legal for the Obama administration to violate the APA to create DACA in the first place. This would have huge long term implications for a future president who could then create all kinds of illegal programs with just "a pen and a phone."
The suit to end DACA is sitting in the 5th Circuit like Sarah said. That case can now go forward and the program will be ended. Roberts will rule that DACA was illegally created and he will be consistent across all three cases. I don't like the situation, but I do understand it, and you can really lay the blame for this at Trump's feet since he dragged them for so long in rescinding the program in the first place, and then just decided to wing it.