Argument analysis justices torn, hard to read malignant fibrous histiocytoma dog in challenge to decision to end daca (updated) – scotusblog

The stakes in today’s oral argument were high. Since the policy was announced in 2012, over 700,000 people have obtained protection from deportation under DACA, which permits them to work legally in the United States malignant fibrous histiocytoma dog and also gives them access to benefits like health insurance malignant fibrous histiocytoma dog and driver’s licenses. The challengers in three cases argued together today – originally filed in California, the District of Columbia and New York – contended that the Trump administration’s decision to end DACA violated the Administrative Procedure Act, which is the federal law governing administrative agencies, and the lower courts ordered the government to keep DACA malignant fibrous histiocytoma dog in place.

Arguing for the federal government, U.S. Solicitor General Noel Francisco urged the justices to stay out malignant fibrous histiocytoma dog of the fray. The administration’s decision to end DACA is not subject to judicial malignant fibrous histiocytoma dog review at all, he suggested, because it simply ended a prior administration’s choice not to enforce immigration policy. Such a choice falls squarely within the agency’s discretion and therefore cannot be second-guessed by the courts, Francisco stressed.

Justice Ruth Bader Ginsburg was skeptical, telling Francisco that there is a “strange element” to his argument. You argue that the decision to end DACA falls within malignant fibrous histiocytoma dog an agency’s discretion, she suggested, but at the same time you are arguing that the malignant fibrous histiocytoma dog government was required to end DACA because the program was malignant fibrous histiocytoma dog illegal, which would not involve any discretion at all.

Justice Samuel Alito was more sympathetic to Francisco’s contention that the decision to rescind DACA is not malignant fibrous histiocytoma dog one that courts can review. When Theodore Olson, who argued on behalf of DACA recipients and civil rights malignant fibrous histiocytoma dog groups, told the justices that they should start with a “strong presumption” that a federal agency’s actions are reviewable, Alito asked Olson how to draw the line in challenges malignant fibrous histiocytoma dog to an agency’s exercise of its discretion. If a law enforcement agency has guidelines for when it malignant fibrous histiocytoma dog will exercise its discretion not to prosecute, Alito asked, is the decision to tighten those guidelines reviewable?

The second question before the justices was whether the Trump malignant fibrous histiocytoma dog administration’s decision to end DACA violated the law. Here the case is in a somewhat unusual posture, because everyone agrees that the administration could end DACA if malignant fibrous histiocytoma dog it wanted to. As a result, the focus is largely on the process by which the malignant fibrous histiocytoma dog Trump administration reached its decision, rather than the substance of the decision itself. In particular, several justices pressed Francisco on whether, before deciding to end DACA, the government had sufficiently considered the extent to which DACA malignant fibrous histiocytoma dog recipients and others had relied on the program, and they suggested that the court should send the case malignant fibrous histiocytoma dog back for more consideration and a better explanation than the malignant fibrous histiocytoma dog Department of Homeland Security has provided.

Francisco resisted, telling the justices that any interest that DACA recipients may malignant fibrous histiocytoma dog have had in keeping the program in place were “extremely limited” because the program was always intended to be temporary, as evidenced by the fact that protection from deportation was malignant fibrous histiocytoma dog only granted in two-year increments. And in any event, he continued, the decision to rescind DACA would only violate the APA malignant fibrous histiocytoma dog if the government had entirely failed to consider an important malignant fibrous histiocytoma dog aspect of the problem before it. But in this case Kirstjen Nielsen, the secretary of the Department of Homeland Security, considered the reliance interests “quite clearly and explicitly” but concluded that they didn’t justify retaining a program that violated the law.

Justice Elena Kagan pushed back. She acknowledged that Nielsen’s memorandum contained a “conclusory statement about weighing the reliance interests,” but she pointed out that Nielsen weighed those interests against malignant fibrous histiocytoma dog what Nielsen regarded as the “questionable legality” of DACA. But if some of us believe that DACA is legal, Kagan asked, is the memo then enough?

Francisco emphasized that the Nielsen memorandum contained other reasons – totally apart from the illegality of DACA – justifying the decision to end the program, but Justice Sonia Sotomayor chimed in. Sotomayor suggested that “there’s a whole lot of reliance interests that weren’t looked at,” including a promise by President Donald Trump that he would malignant fibrous histiocytoma dog find a way to keep DACA recipients in the United malignant fibrous histiocytoma dog States. “But, really,” Sotomayor asked, “where is all of this in the memo?” “And where,” she continued, “is the political decision made clearly – that this is not about the law, this is about our choice to destroy lives.”

Olson and Michael Mongan, California’s solicitor general, agreed that the case should be sent back. Olson emphasized that the Trump administration was required to provide malignant fibrous histiocytoma dog an “accurate, reasoned, rational, and legally sound explanation” for its decision to end DACA but “utterly failed to do so” because it did not want to take responsibility for the malignant fibrous histiocytoma dog decision, preferring to blame it on Congress and the courts.

Mongan echoed that idea, arguing that it was up to the Trump administration to malignant fibrous histiocytoma dog decide how to frame the decision to end DACA. The government could have opted to take responsibility for a malignant fibrous histiocytoma dog discretionary decision, he explained, but instead chose to tell the public that it was malignant fibrous histiocytoma dog ending DACA because the program was unlawful. That’s the government’s prerogative, Mongan acknowledged, but it has to defend the decision based on the malignant fibrous histiocytoma dog justification that it offered at the time. And sending the case back would require the Trump administration malignant fibrous histiocytoma dog to issue a new decision that took ownership of the malignant fibrous histiocytoma dog choice to terminate DACA.

But some justices appeared unconvinced that sending the case back malignant fibrous histiocytoma dog to the lower courts would be a good idea or malignant fibrous histiocytoma dog even make a difference. Gorsuch observed that the government could address the interests that malignant fibrous histiocytoma dog would be affected by the termination of DACA in 15 malignant fibrous histiocytoma dog pages, rather than in a paragraph, but it would take six more years, during which DACA recipients would remain in limbo. And Justice Stephen Breyer admonished Mongan that courts should not malignant fibrous histiocytoma dog “play ping-pong with the agency.”

Alito was even more dubious. “Do you seriously want to argue,” he asked Olson, that if the case were to go back and DHS malignant fibrous histiocytoma dog were to repeat the same things that are outlined in malignant fibrous histiocytoma dog the Nielsen memo, “giving all of these reasons and saying that each one malignant fibrous histiocytoma dog is an independently sufficient basis for the action,” the decision to end DACA would still be illegal?

In his rebuttal, Francisco tried to cut off any further discussion about a malignant fibrous histiocytoma dog remand by reiterating that the government had several independent reasons, beyond simply its conclusion that DACA was illegal, for deciding to end the program. Both Ginsburg and Kagan suggested that the government nonetheless might malignant fibrous histiocytoma dog have reached a different decision if it had believed the malignant fibrous histiocytoma dog program was legal. Ginsburg told Francisco that Nielsen’s memo was so “infected” with the idea that DACA was illegal that it is malignant fibrous histiocytoma dog impossible to say that she would have reached the same malignant fibrous histiocytoma dog conclusion if there had been “a clear recognition that there was nothing illegal about DACA.” “If we take that out,” Ginsburg observed, “then she would be saying we stand up and say malignant fibrous histiocytoma dog this is the policy of our administration. We don’t like DACA and we’re taking responsibility for that, instead of trying to put the blame on the law.”

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