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Vox: DACA Supreme Court Case Analysis

https://www.vox.com/policy-and-polit...such-kavanaugh

The 'reliance interest' argument appears to be our only hope in getting a favorable vote.

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During the argument, several justices repeated two pivotal words: “reliance interest.” Broadly speaking, when the government wants to end a policy that many people have relied upon, it must provide an explanation of why this policy shift is justified despite the fact that those people have come to depend upon it.

All four of the liberal justices, at various times, worried that the administration did not meet this burden when it explained its decision to end DACA. Meanwhile, Justice Samuel Alito appeared to be the only member of the Court’s conservative bloc who seemed unconcerned about the reliance interest problem — although Chief Justice Roberts signaled in several of his questions that he is bothered by the broad range of discretion over immigration policy that the Obama administration claimed when it began the DACA program.

That leaves Justices Neil Gorsuch and Brett Kavanaugh, who simultaneously appeared sympathetic to the administration’s arguments, but also concerned that the administration did not adequately address the reliance problem. Gorsuch, in particular, seemed concerned that because winding down DACA would impact a large class of individuals, the administration may need to provide a fuller explanation for its actions.(Justice Clarence Thomas hewed to his typical practice of not asking any questions.)

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The DACA cases turn on a tiny legal question

While the human stakes in these cases are enormous, the legal question is so minor that it is unclear why the Court agreed to hear the cases in the first place.

As a general rule, the executive branch must provide a reasoned explanation when it announces a new policy. Three lower courts held that the Trump administration failed to adequately explain its decision to end DACA, and blocked the decision on those grounds.

The lower court’s rationale hinged upon the most lawyerly of distinctions. If the administration had said they were ending DACA for a policy-based reason, then the administration’s decision to end DACA would be largely unreviewable by federal courts. But if the administration offers a legaljustification — that is, if they claim that they are ending DACA because they believe DACA to be illegal — then the courts may review that legal determination.

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Meanwhile, Roberts, Gorsuch, and Kavanaugh all asked about the reliance problem. Gorsuch honed in on this problem early in the argument, asking Solicitor General Noel Francisco whether the administration needs to say more about reliance interests given the huge stakes in this case and the tremendous number of people impacted by the decision to wind down DACA. Likewise, Kavanaugh acknowledged that Nielsen discussed the reliance question only “briefly” in her memo, though he also seemed unsure about what more Nielsen should have done.

After more than an hour of arguments, Gorsuch appeared to be the most likely member of the Court’s conservative bloc to cross over and vote with the liberals. But Gorsuch gave many signs that he is still likely to vote with Trump. He noted, for example, that courts would not be allowed to review a prosecutor’s decision not to prosecute marijuana offenders — or to lift that policy.

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Likewise, Gorsuch also asked why it would really matter if the Supreme Court left DACA in place until the administration provides a longer answer to the reliance problem. Whether that explanation is one paragraph or 15 pages, doesn’t this all end the same way for DACA beneficiaries?

The polite answer to Gorsuch’s question came from Ted Olson, one of the two attorneys arguing in defense of DACA. At the very least, Olson said, the Trump administration should have to “take responsibility” for its decision to cast hundreds of thousands of immigrants back into the shadows. It cannot hide behind a highly contested claim that DACA is illegal.

If the Trump administration wants to target DREAMers, it should have to own its decision to do so.

The more direct answer came from Justice Sonia Sotomayor. The administration has not provided a political explanation for its choice to “destroy lives.” If it is going to cast DREAMers into the abyss, it at least owes them an explanation.