Speaker 1: Welcome to the Bloomberg Law Podcast. I'm June Grosso. Every
Speaker 1: day we bring you insight and analysis into the most
Speaker 1: important legal news of the day. You can find more
Speaker 1: episodes of the Bloomberg Law Podcast on Apple Podcasts, SoundCloud,
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Speaker 1: the biggest cases of the Supreme Court's term, involving presidential
Speaker 1: powers and the fate of seven hundred thousands so called dreamers,
Speaker 1: and in oral arguments the Supreme Courts conservative justices seemed
Speaker 1: inclined to let President Trump cancel the DOCCA program that
Speaker 1: shields those young undocumented immigrants from deportation. Justice Sonya Soto Mayora,
Speaker 1: like some of the other liberal justices, expressed concern about
Speaker 1: the reliance dreamers placed on the DOCCA program. I think
Speaker 1: my colleagues have rightly pointed there's a whole lot of
Speaker 1: reliance interests that were looked at, including the very president
Speaker 1: of current president telling DOCTA eligible people that they were
Speaker 1: safe under him and that he would find a way
Speaker 1: to keep them here, and so he hasn't and instead
Speaker 1: he's done this, and that I think has something to
Speaker 1: be considered before you resend a policy right, not just
Speaker 1: saying I'll give you six months to do it right,
Speaker 1: to destroy your lives. But some conservative justices accepted the
Speaker 1: administration's reasons for terminating DACA. Others saw no point in
Speaker 1: making the Trump administration provide more elaborate reasoning in the future.
Speaker 1: Here's Justice Neil Gorsch. I think your your friend on
Speaker 1: the other side, would say, we did addrest for Alliance
Speaker 1: interrists in a paragraph, and we could do it in
Speaker 1: fifteen pages. But we'd say pretty much the same thing
Speaker 1: at the end of the day, and it takes another
Speaker 1: six years, and it would leave this class of persons
Speaker 1: under a continuing cloud of uncertainty and continue stasis in
Speaker 1: the political branches because they would not have a baseline
Speaker 1: rule of decision from this court. Joining me is Neil Kinkoff,
Speaker 1: a professor of constitutional law at Georgia State University College
Speaker 1: of Law, explain the issue before the justices. The issue
Speaker 1: is a fairly technical issue relating to the agency's discretion
Speaker 1: to rescind the DACCA program. And really it turns on
Speaker 1: the question of why the administration is rescinding the DOCCA program.
Speaker 1: If it's doing it just as a matter of policy, discretion,
Speaker 1: then that decision is essentially unreviewable by the courts. If,
Speaker 1: on the other hand, it's doing it because it thinks
Speaker 1: DACA was illegal, then the court can review that decision.
Speaker 1: And so a lot of the argument had to do
Speaker 1: with that. And one of the arguments that gets made is, well,
Speaker 1: why should it matter. The administration clearly wants to rescind this,
Speaker 1: so who cares whether it's for reasons of law or
Speaker 1: reasons of policy discretion. And the answer is twofold. First
Speaker 1: of all, the agency's decision leaned very heavily on the
Speaker 1: supposed illegality of DHAKA and gave only very brief attention
Speaker 1: to policy reasons. And in fact, President Trump himself has
Speaker 1: said that as a matter of policy, he wants to
Speaker 1: adhere to something like DACA. So if it's based only
Speaker 1: on policy, it's not actually clear that the administration would
Speaker 1: rescind data. And so in fact, their emphasis has been
Speaker 1: on the argument that well, it was illegal, it really
Speaker 1: unlikely to be true reading of the law. And so
Speaker 1: the court is wrestling with this question of whether or
Speaker 1: not they should force the administration to own the policy,
Speaker 1: which is ultimately the stakes in this case. Transparency the
Speaker 1: administration if it wants to rescind Daca can but it
Speaker 1: needs to say we are doing it, and we are
Speaker 1: doing it as a matter of policy, and not hide
Speaker 1: behind a lawyer's legal opinion. Didn't a solicitor general say
Speaker 1: at the arguments we own the policy. He did, But
Speaker 1: that's hardly a sort of official pronouncement to the public
Speaker 1: from the administration. Right, So the solicitor General saying this
Speaker 1: in the cosseted warrens of the Supreme Court doesn't have
Speaker 1: the same kind of transparency as the Secretary of the
Speaker 1: Department of Homeland Security or the President actually in a
Speaker 1: press conference saying on camera, we are rescinding the Dacca
Speaker 1: policy because we are opposed to this policy. Right, That's
Speaker 1: a position, in fact, the President has never been willing
Speaker 1: to take, and every public pronouncement he's made is one
Speaker 1: of sympathy for Dacca and for the dreamers. So the
Speaker 1: insequence of a Supreme Court ruling should be that if
Speaker 1: the president wants to do that, the president has to
Speaker 1: own it. So Neil. It seems from everyone who was
Speaker 1: watching the arguments that the conservative justices seem to support
Speaker 1: the Trump administration in this and seem to be willing
Speaker 1: to rule that DACA is illegal. Well, I'm not sure
Speaker 1: they're going to be willing to rule that DOCCA is illegal.
Speaker 1: I think it's pretty clear that the conservative justices want
Speaker 1: to just say, well, the president can resend this policy
Speaker 1: if the president wants to, and we'd really rather not
Speaker 1: get into the reasons. Some of the conservative justices said
Speaker 1: they think DOCCA is illegal, although it's awfully hard to
Speaker 1: square that conclusion with their conclusion that President Trump's travel
Speaker 1: ban was permissible. Right, I mean, it's not the same
Speaker 1: section of the immigration law, but it is still the
Speaker 1: immigration law, and the underpinning of that case. The reasoning
Speaker 1: for that case was the immigration law gives the president
Speaker 1: great discretion with respect to who comes in and who
Speaker 1: stays in, and if that's right, the same reasoning leads
Speaker 1: to the conclusion that President Obama's decision about whom to
Speaker 1: deport is well within the kind of discretion that the
Speaker 1: immigration law gives to the president. And in fact, there's
Speaker 1: an awful lot of precedent from president's Republican and democratic
Speaker 1: doing exactly the kind of thing the President Obama did.
Speaker 1: So I don't think the Court is actually very eager
Speaker 1: to get at the legality of Dhaka itself. So might
Speaker 1: the Conservative justices be willing then to say that the
Speaker 1: reasoning for it, the policy reasons behind it, were legitimate.
Speaker 1: It could The problem of them doing that is the
Speaker 1: policy reasons articulated we're really really thin. And so if
Speaker 1: the administration is going to resend Dhaka on policy grounds,
Speaker 1: the Administrative Procedure Act makes it pretty clear they need
Speaker 1: to say what those crowns are right, They need to
Speaker 1: actually do the policy analysis and not say, well, this
Speaker 1: is some political promise from the President that that we're
Speaker 1: trying to enforce. So where do you think the court
Speaker 1: will come down. I think ultimately they're going to issue
Speaker 1: a not very clear opinion that has the conclusion that
Speaker 1: the President can rassind Dhaka. I don't think it's going
Speaker 1: to be very clear exactly why they're letting him do that,
Speaker 1: other than to say, well, the President has discretion here
Speaker 1: and we don't want to get involved in interfering with that.
Speaker 1: Is it going to be dependent on Chief Justice Robert
Speaker 1: because you mentioned the travel ban, so he was with
Speaker 1: the Conservatives and the travel band case, but he was
Speaker 1: with the liberals in the census question case. So is
Speaker 1: it up to him. Well, he's the obvious justice that
Speaker 1: sometimes swings against presidential power. So he's he's the fit
Speaker 1: vote that I think, for the most part, people are
Speaker 1: looking for. I think certainly Justice Kavanaugh is not going
Speaker 1: to vote for the Dreamers. I don't think Thomas will
Speaker 1: Gore such an Alito are are possible as well. So
Speaker 1: I don't think Roberts is the only potential swing vote,
Speaker 1: but he's the most likely. Justice. Sonia Soto Mayor said,
Speaker 1: this is not about the law. This is about our
Speaker 1: choice to destroy lives. If it's not about the law,
Speaker 1: then why is it before the Supreme Court? And is
Speaker 1: she going outside? You know the confines of what's before
Speaker 1: the court. Well, the law requires the administrative agency to
Speaker 1: make a reasoned decision, and so the reasons it gives
Speaker 1: relate to the dramatic consequences that follow from ending DAKA,
Speaker 1: and so I think what Justice Soto Mayor was getting
Speaker 1: at there is it is the proper role of the
Speaker 1: courts to force the administration to consider the consequences of
Speaker 1: its action. They can't tell them not to take the action,
Speaker 1: but the administration has to consider and justify those consequences.
Speaker 1: And if you look at the actual policy rationale it gave.
Speaker 1: Like I said, it's incredibly thin. It notices that there
Speaker 1: would be dramatic consequences to deporting all the Dreamers, and
Speaker 1: then says, essentially, our hands are tied because Dacca was illegal. Well,
Speaker 1: if that's wrong, that Dacca was illegal, now it has
Speaker 1: to consider whether or not it's willing to voluntarily impose
Speaker 1: those consequences. And nothing in their rationale indicated that they
Speaker 1: were willing voluntarily to impose those consequences. Only that g
Speaker 1: We're sorry, our hands are tied because Dacca was illegal.
Speaker 1: What impressed you about the arguments? The impression I came
Speaker 1: away with was just how how much the conservative justices
Speaker 1: really wanted to defer to the executive branch. I think
Speaker 1: that has real foreboding for a lot of cases that
Speaker 1: are coming down the pike, not just the Dreamer case,
Speaker 1: which deals with an important, even almost existential question for
Speaker 1: hundreds of thousands of Americans. I don't want to minimize
Speaker 1: the importance of that case, but when we think about it,
Speaker 1: saying the context of the ongoing impeachment and all of
Speaker 1: the legal questions relating to that, I think the posture
Speaker 1: that the conservative justices took at oral argument sort of
Speaker 1: has a foreshadowing for cases that are apt to come
Speaker 1: out of that other area. I mean, I don't think
Speaker 1: there's a very important legal question involved in this case.
Speaker 1: You know, ultimately, of course, the Trump administration can rescind DOKA.
Speaker 1: It was a matter of executive discretion when Obama issued it,
Speaker 1: and it's a matter of executive discretion to rescind it.
Speaker 1: It is the case that they have to give good
Speaker 1: and valid reasons and stick by those reasons. But I
Speaker 1: have a certain amount of sympathy for the argument that, well,
Speaker 1: why bother making them go back and redo it, because
Speaker 1: they're just going to paper the record, and you know,
Speaker 1: maybe they will. In fact, I expect that they will,
Speaker 1: but there's a chance that they wouldn't, And given the
Speaker 1: importance of the issue, I think it's maybe appropriate to
Speaker 1: make them do it right. But again, it's not a
Speaker 1: very important question of law. It's very clear that this
Speaker 1: is just a matter of executive discretion, and what's being
Speaker 1: argued over isn't whether the president has the power or
Speaker 1: whether the administration has the power. It's more did they
Speaker 1: dot their eyes and cross their keys? Thanks Neil, that's
Speaker 1: Neil Kinkoff, a professor at Georgia State University College of Law.
Speaker 1: Thanks for listening to the Bloomberg Law Podcast. You can
Speaker 1: subscribe and listen to the show on Apple Podcasts, SoundCloud,
Speaker 1: and on Bloomberg dot com slash podcast. I'm June Brosso.
Speaker 1: This is Bloomberg Ye.