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Arbitrary and Capricious

Republican U.S. presidential candidate Donald Trump speaks during a campaign rally at the Treasure Island Hotel & Casino in Las Vegas, Nevada June 18, 2016. REUTERS/David Becker/Files

I have to say, this one (pleasantly) surprised me:

The Supreme Court ruled Thursday that the Trump administration may not immediately proceed with its plan to end a program protecting about 700,000 young immigrants known as Dreamers from deportation.

The court’s ruling was a blow to one of President Trump’s central campaign promises — that as president he would “immediately terminate” an executive order by former President Barack Obama that Mr. Trump had called an illegal executive amnesty for hundreds of thousands of young immigrants.

Chief Justice John G. Roberts Jr. wrote the majority opinion, joined by the court’s four more liberal members in upholding the program, Deferred Action for Childhood Arrivals, or DACA.

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

After contentious debates among his aides, Mr. Trump announced in September 2017 that he would wind down the program. He gave only a single reason for doing so, saying that creating or maintaining the program was beyond the legal power of any president.

But the justifications the government gave, Chief Justice Roberts wrote, were insufficient. He said the administration may try again to provide adequate reasons for shutting down the program.

Looking forward to the Trump administration explaining that ending DACA is necessary for its vigorous enforcement of the Voting Rights Act.

Roberts did side with the administration again, however, on the question of whether the rescission of DACA was motivated by racial animus and hence contrary to the Fifth Amendment. As Justice Sotomayor observes:

I too would permit respondents’ claims to proceed on remand. The complaints each set forth particularized facts that plausibly allege discriminatory animus. The plurality disagrees, reasoning that “[n]one of these points, either singly or in concert, establishes a plausible equal protection claim.” But it reaches that conclusion by discounting some allegations altogether and by narrowly viewing the rest.

 First, the plurality dismisses the statements that President Trump made both before and after he assumed office. The Batalla Vidal complaints catalog then-candidate Trump’s declarations that Mexican immigrants are “people that have lots of problems,” “the bad ones,” and “criminals, drug dealers, [and] rapists.” The Regents complaints ad ditionally quote President Trump’s 2017 statement comparing undocumented immigrants to “animals” responsible for “the drugs, the gangs, the cartels, the crisis of smuggling and trafficking, [and] MS13.” The plurality brushes these aside as “unilluminating,” “remote in time,” and having been “made in unrelated contexts.”

 But “nothing in our precedent supports [the] blinkered approach” of disregarding any of the campaign statements as remote in time from later-enacted policies. Nor did any of the statements arise in unrelated contexts. They bear on unlawful migration from Mexico—a keystone of President Trump’s campaign and a policy priority of his administration—and, according to respondents, were an animating force behind the rescission of DACA, which barred entry of individuals from several Muslim-majority countries, was an outgrowth of the President’s campaign statements about Muslims). Taken together, “the words of the President” help to “create the strong perception” that the rescission decision was “contaminated by impermissible discriminatory animus.” This perception provides respondents with grounds to litigate their equal protection claims further.

 Next, the plurality minimizes the disproportionate impact of the rescission decision on Latinos after considering this point in isolation. But the impact of the policy decision must be viewed in the context of the President’s public statements on and off the campaign trail. At the motion-to-dismiss  stage, I would not so readily dismiss the allegation that an executive decision disproportionately harms the same racial group that the President branded as less desirable mere months earlier.

 Finally, the plurality finds nothing untoward in the “specific sequence of events leading up to the challenged decision.” I disagree. As late as June 2017, DHS insisted it remained committed to DACA, even while rescinding a related program, the Deferred Action for Parents of Americans and Lawful Permanent Residents. But a mere three months later, DHS terminated DACA without, as the plurality acknowledges, considering important aspects of the termination. The abrupt change in position plausibly suggests that something other than questions about the legality of DACA motivated the rescission decision. Accordingly, it raises the possibility of a “significant mismatch between the decision . . . made and the rationale . . . provided.”  Only by bypassing context does the plurality conclude otherwise.

Roberts’s argument that Trump’s extensive history of racist comments is irrelevant to evaluating the constitutionality of Trump actions that have no plausible explanation other than racism remains as unconvincing as it was in Koremastu II. Nonetheless, I will sign for the ruling that the recession violated the APA, and there’s at least one elite Republican who is becoming less willing to go down with Trump Ocean Lines as it heads towards the iceberg.

Also LOL:

“This ruling is a SHOTGUN BLAST to the voters who sent me to the White House to do racisms.”

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