WEBVTT - DACA Appears in Jeopardy at Supreme Court 0:00:03.520 --> 0:00:07.040 Welcome to the Bloomberg Law Podcast. I'm June Grosso. Every 0:00:07.120 --> 0:00:09.680 day we bring you insight and analysis into the most 0:00:09.720 --> 0:00:12.200 important legal news of the day. You can find more 0:00:12.240 --> 0:00:16.160 episodes of the Bloomberg Law Podcast on Apple Podcasts, SoundCloud, 0:00:16.280 --> 0:00:19.680 and on Bloomberg dot com slash podcasts. It's one of 0:00:19.720 --> 0:00:23.440 the biggest cases of the Supreme Court's term, involving presidential 0:00:23.520 --> 0:00:27.200 powers and the fate of seven hundred thousands so called dreamers, 0:00:27.440 --> 0:00:31.640 and in oral arguments the Supreme Courts conservative justices seemed 0:00:31.640 --> 0:00:35.000 inclined to let President Trump cancel the DOCCA program that 0:00:35.080 --> 0:00:40.559 shields those young undocumented immigrants from deportation. Justice Sonya Soto Mayora, 0:00:40.640 --> 0:00:44.160 like some of the other liberal justices, expressed concern about 0:00:44.200 --> 0:00:47.680 the reliance dreamers placed on the DOCCA program. I think 0:00:47.720 --> 0:00:50.080 my colleagues have rightly pointed there's a whole lot of 0:00:50.120 --> 0:00:55.800 reliance interests that were looked at, including the very president 0:00:55.960 --> 0:01:03.600 of current president telling DOCTA eligible people that they were 0:01:03.640 --> 0:01:07.440 safe under him and that he would find a way 0:01:07.480 --> 0:01:13.040 to keep them here, and so he hasn't and instead 0:01:13.120 --> 0:01:16.520 he's done this, and that I think has something to 0:01:16.720 --> 0:01:21.000 be considered before you resend a policy right, not just 0:01:21.120 --> 0:01:23.600 saying I'll give you six months to do it right, 0:01:24.160 --> 0:01:28.320 to destroy your lives. But some conservative justices accepted the 0:01:28.360 --> 0:01:32.800 administration's reasons for terminating DACA. Others saw no point in 0:01:32.840 --> 0:01:36.480 making the Trump administration provide more elaborate reasoning in the future. 0:01:36.880 --> 0:01:40.920 Here's Justice Neil Gorsch. I think your your friend on 0:01:40.920 --> 0:01:43.560 the other side, would say, we did addrest for Alliance 0:01:43.640 --> 0:01:46.520 interrists in a paragraph, and we could do it in 0:01:46.640 --> 0:01:50.520 fifteen pages. But we'd say pretty much the same thing 0:01:50.560 --> 0:01:53.040 at the end of the day, and it takes another 0:01:53.120 --> 0:01:57.080 six years, and it would leave this class of persons 0:01:57.240 --> 0:02:01.800 under a continuing cloud of uncertainty and continue stasis in 0:02:01.840 --> 0:02:05.200 the political branches because they would not have a baseline 0:02:05.240 --> 0:02:08.359 rule of decision from this court. Joining me is Neil Kinkoff, 0:02:08.360 --> 0:02:11.880 a professor of constitutional law at Georgia State University College 0:02:11.880 --> 0:02:16.919 of Law, explain the issue before the justices. The issue 0:02:17.000 --> 0:02:22.519 is a fairly technical issue relating to the agency's discretion 0:02:22.680 --> 0:02:28.160 to rescind the DACCA program. And really it turns on 0:02:28.200 --> 0:02:34.560 the question of why the administration is rescinding the DOCCA program. 0:02:34.600 --> 0:02:38.480 If it's doing it just as a matter of policy, discretion, 0:02:39.160 --> 0:02:44.280 then that decision is essentially unreviewable by the courts. If, 0:02:44.360 --> 0:02:47.880 on the other hand, it's doing it because it thinks 0:02:48.000 --> 0:02:52.400 DACA was illegal, then the court can review that decision. 0:02:53.000 --> 0:02:54.920 And so a lot of the argument had to do 0:02:55.040 --> 0:02:59.000 with that. And one of the arguments that gets made is, well, 0:02:59.160 --> 0:03:02.640 why should it matter. The administration clearly wants to rescind this, 0:03:02.880 --> 0:03:06.760 so who cares whether it's for reasons of law or 0:03:06.800 --> 0:03:11.480 reasons of policy discretion. And the answer is twofold. First 0:03:11.520 --> 0:03:17.000 of all, the agency's decision leaned very heavily on the 0:03:17.080 --> 0:03:23.600 supposed illegality of DHAKA and gave only very brief attention 0:03:23.680 --> 0:03:28.280 to policy reasons. And in fact, President Trump himself has 0:03:28.360 --> 0:03:30.600 said that as a matter of policy, he wants to 0:03:30.639 --> 0:03:34.920 adhere to something like DACA. So if it's based only 0:03:34.960 --> 0:03:38.760 on policy, it's not actually clear that the administration would 0:03:38.800 --> 0:03:42.680 rescind data. And so in fact, their emphasis has been 0:03:42.840 --> 0:03:45.840 on the argument that well, it was illegal, it really 0:03:46.240 --> 0:03:50.240 unlikely to be true reading of the law. And so 0:03:50.360 --> 0:03:53.520 the court is wrestling with this question of whether or 0:03:53.600 --> 0:03:57.680 not they should force the administration to own the policy, 0:03:57.760 --> 0:04:01.400 which is ultimately the stakes in this case. Transparency the 0:04:01.480 --> 0:04:06.000 administration if it wants to rescind Daca can but it 0:04:06.040 --> 0:04:08.200 needs to say we are doing it, and we are 0:04:08.240 --> 0:04:11.600 doing it as a matter of policy, and not hide 0:04:11.640 --> 0:04:16.719 behind a lawyer's legal opinion. Didn't a solicitor general say 0:04:16.720 --> 0:04:20.120 at the arguments we own the policy. He did, But 0:04:20.279 --> 0:04:25.000 that's hardly a sort of official pronouncement to the public 0:04:25.400 --> 0:04:29.400 from the administration. Right, So the solicitor General saying this 0:04:29.520 --> 0:04:33.480 in the cosseted warrens of the Supreme Court doesn't have 0:04:33.520 --> 0:04:37.320 the same kind of transparency as the Secretary of the 0:04:37.360 --> 0:04:40.800 Department of Homeland Security or the President actually in a 0:04:40.880 --> 0:04:44.960 press conference saying on camera, we are rescinding the Dacca 0:04:45.080 --> 0:04:48.720 policy because we are opposed to this policy. Right, That's 0:04:48.720 --> 0:04:51.599 a position, in fact, the President has never been willing 0:04:52.160 --> 0:04:56.240 to take, and every public pronouncement he's made is one 0:04:56.279 --> 0:04:59.480 of sympathy for Dacca and for the dreamers. So the 0:05:00.040 --> 0:05:03.000 insequence of a Supreme Court ruling should be that if 0:05:03.040 --> 0:05:06.240 the president wants to do that, the president has to 0:05:06.279 --> 0:05:10.320 own it. So Neil. It seems from everyone who was 0:05:10.600 --> 0:05:16.200 watching the arguments that the conservative justices seem to support 0:05:16.360 --> 0:05:19.599 the Trump administration in this and seem to be willing 0:05:19.600 --> 0:05:23.360 to rule that DACA is illegal. Well, I'm not sure 0:05:23.360 --> 0:05:25.960 they're going to be willing to rule that DOCCA is illegal. 0:05:26.160 --> 0:05:29.919 I think it's pretty clear that the conservative justices want 0:05:30.040 --> 0:05:33.680 to just say, well, the president can resend this policy 0:05:33.680 --> 0:05:36.160 if the president wants to, and we'd really rather not 0:05:36.279 --> 0:05:39.760 get into the reasons. Some of the conservative justices said 0:05:39.800 --> 0:05:43.320 they think DOCCA is illegal, although it's awfully hard to 0:05:43.360 --> 0:05:47.599 square that conclusion with their conclusion that President Trump's travel 0:05:47.680 --> 0:05:51.440 ban was permissible. Right, I mean, it's not the same 0:05:51.480 --> 0:05:55.240 section of the immigration law, but it is still the 0:05:55.279 --> 0:05:58.800 immigration law, and the underpinning of that case. The reasoning 0:05:58.839 --> 0:06:02.200 for that case was the immigration law gives the president 0:06:02.760 --> 0:06:06.360 great discretion with respect to who comes in and who 0:06:06.400 --> 0:06:10.880 stays in, and if that's right, the same reasoning leads 0:06:10.920 --> 0:06:14.240 to the conclusion that President Obama's decision about whom to 0:06:14.320 --> 0:06:18.040 deport is well within the kind of discretion that the 0:06:18.080 --> 0:06:20.920 immigration law gives to the president. And in fact, there's 0:06:20.960 --> 0:06:25.160 an awful lot of precedent from president's Republican and democratic 0:06:25.560 --> 0:06:28.560 doing exactly the kind of thing the President Obama did. 0:06:29.000 --> 0:06:31.760 So I don't think the Court is actually very eager 0:06:31.839 --> 0:06:36.080 to get at the legality of Dhaka itself. So might 0:06:36.120 --> 0:06:40.640 the Conservative justices be willing then to say that the 0:06:40.760 --> 0:06:45.360 reasoning for it, the policy reasons behind it, were legitimate. 0:06:45.839 --> 0:06:48.520 It could The problem of them doing that is the 0:06:48.520 --> 0:06:53.920 policy reasons articulated we're really really thin. And so if 0:06:53.960 --> 0:06:57.880 the administration is going to resend Dhaka on policy grounds, 0:06:57.920 --> 0:07:01.320 the Administrative Procedure Act makes it pretty clear they need 0:07:01.360 --> 0:07:04.159 to say what those crowns are right, They need to 0:07:04.240 --> 0:07:08.599 actually do the policy analysis and not say, well, this 0:07:08.680 --> 0:07:11.800 is some political promise from the President that that we're 0:07:11.840 --> 0:07:14.120 trying to enforce. So where do you think the court 0:07:14.160 --> 0:07:17.320 will come down. I think ultimately they're going to issue 0:07:17.440 --> 0:07:22.080 a not very clear opinion that has the conclusion that 0:07:22.200 --> 0:07:25.040 the President can rassind Dhaka. I don't think it's going 0:07:25.040 --> 0:07:27.880 to be very clear exactly why they're letting him do that, 0:07:28.240 --> 0:07:31.200 other than to say, well, the President has discretion here 0:07:31.440 --> 0:07:35.480 and we don't want to get involved in interfering with that. 0:07:36.000 --> 0:07:39.200 Is it going to be dependent on Chief Justice Robert 0:07:39.520 --> 0:07:43.720 because you mentioned the travel ban, so he was with 0:07:43.760 --> 0:07:46.960 the Conservatives and the travel band case, but he was 0:07:47.240 --> 0:07:51.640 with the liberals in the census question case. So is 0:07:51.640 --> 0:07:55.080 it up to him. Well, he's the obvious justice that 0:07:55.240 --> 0:07:59.880 sometimes swings against presidential power. So he's he's the fit 0:08:00.160 --> 0:08:03.040 vote that I think, for the most part, people are 0:08:03.080 --> 0:08:06.320 looking for. I think certainly Justice Kavanaugh is not going 0:08:06.360 --> 0:08:10.200 to vote for the Dreamers. I don't think Thomas will 0:08:10.560 --> 0:08:13.680 Gore such an Alito are are possible as well. So 0:08:13.800 --> 0:08:16.680 I don't think Roberts is the only potential swing vote, 0:08:16.680 --> 0:08:20.119 but he's the most likely. Justice. Sonia Soto Mayor said, 0:08:20.160 --> 0:08:22.480 this is not about the law. This is about our 0:08:22.600 --> 0:08:26.160 choice to destroy lives. If it's not about the law, 0:08:26.200 --> 0:08:29.680 then why is it before the Supreme Court? And is 0:08:29.720 --> 0:08:33.360 she going outside? You know the confines of what's before 0:08:33.400 --> 0:08:38.480 the court. Well, the law requires the administrative agency to 0:08:38.679 --> 0:08:43.319 make a reasoned decision, and so the reasons it gives 0:08:43.520 --> 0:08:48.640 relate to the dramatic consequences that follow from ending DAKA, 0:08:48.960 --> 0:08:51.559 and so I think what Justice Soto Mayor was getting 0:08:51.600 --> 0:08:55.319 at there is it is the proper role of the 0:08:55.320 --> 0:08:59.600 courts to force the administration to consider the consequences of 0:08:59.640 --> 0:09:02.800 its action. They can't tell them not to take the action, 0:09:03.240 --> 0:09:07.320 but the administration has to consider and justify those consequences. 0:09:07.360 --> 0:09:10.560 And if you look at the actual policy rationale it gave. 0:09:10.679 --> 0:09:14.080 Like I said, it's incredibly thin. It notices that there 0:09:14.080 --> 0:09:18.040 would be dramatic consequences to deporting all the Dreamers, and 0:09:18.080 --> 0:09:22.600 then says, essentially, our hands are tied because Dacca was illegal. Well, 0:09:22.640 --> 0:09:25.840 if that's wrong, that Dacca was illegal, now it has 0:09:25.880 --> 0:09:30.360 to consider whether or not it's willing to voluntarily impose 0:09:30.440 --> 0:09:35.800 those consequences. And nothing in their rationale indicated that they 0:09:35.800 --> 0:09:39.920 were willing voluntarily to impose those consequences. Only that g 0:09:40.120 --> 0:09:43.240 We're sorry, our hands are tied because Dacca was illegal. 0:09:43.760 --> 0:09:47.640 What impressed you about the arguments? The impression I came 0:09:47.640 --> 0:09:52.839 away with was just how how much the conservative justices 0:09:52.960 --> 0:09:56.760 really wanted to defer to the executive branch. I think 0:09:56.800 --> 0:10:00.520 that has real foreboding for a lot of cases that 0:10:00.559 --> 0:10:03.360 are coming down the pike, not just the Dreamer case, 0:10:03.440 --> 0:10:08.160 which deals with an important, even almost existential question for 0:10:08.280 --> 0:10:11.319 hundreds of thousands of Americans. I don't want to minimize 0:10:11.360 --> 0:10:14.240 the importance of that case, but when we think about it, 0:10:14.320 --> 0:10:17.240 saying the context of the ongoing impeachment and all of 0:10:17.280 --> 0:10:21.520 the legal questions relating to that, I think the posture 0:10:21.559 --> 0:10:25.800 that the conservative justices took at oral argument sort of 0:10:26.440 --> 0:10:29.439 has a foreshadowing for cases that are apt to come 0:10:29.440 --> 0:10:32.360 out of that other area. I mean, I don't think 0:10:32.360 --> 0:10:36.120 there's a very important legal question involved in this case. 0:10:36.240 --> 0:10:41.080 You know, ultimately, of course, the Trump administration can rescind DOKA. 0:10:41.240 --> 0:10:44.480 It was a matter of executive discretion when Obama issued it, 0:10:44.600 --> 0:10:48.200 and it's a matter of executive discretion to rescind it. 0:10:48.200 --> 0:10:50.480 It is the case that they have to give good 0:10:50.480 --> 0:10:54.160 and valid reasons and stick by those reasons. But I 0:10:54.200 --> 0:10:57.040 have a certain amount of sympathy for the argument that, well, 0:10:57.320 --> 0:11:00.280 why bother making them go back and redo it, because 0:11:00.320 --> 0:11:02.720 they're just going to paper the record, and you know, 0:11:03.000 --> 0:11:05.680 maybe they will. In fact, I expect that they will, 0:11:05.840 --> 0:11:08.680 but there's a chance that they wouldn't, And given the 0:11:08.720 --> 0:11:12.200 importance of the issue, I think it's maybe appropriate to 0:11:12.240 --> 0:11:14.640 make them do it right. But again, it's not a 0:11:14.720 --> 0:11:18.319 very important question of law. It's very clear that this 0:11:18.440 --> 0:11:21.520 is just a matter of executive discretion, and what's being 0:11:21.640 --> 0:11:24.960 argued over isn't whether the president has the power or 0:11:25.000 --> 0:11:27.719 whether the administration has the power. It's more did they 0:11:28.000 --> 0:11:31.360 dot their eyes and cross their keys? Thanks Neil, that's 0:11:31.400 --> 0:11:35.040 Neil Kinkoff, a professor at Georgia State University College of Law. 0:11:38.000 --> 0:11:40.920 Thanks for listening to the Bloomberg Law Podcast. You can 0:11:40.960 --> 0:11:44.720 subscribe and listen to the show on Apple Podcasts, SoundCloud, 0:11:44.800 --> 0:11:48.680 and on Bloomberg dot com slash podcast. I'm June Brosso. 0:11:49.160 --> 0:11:53.000 This is Bloomberg Ye.