The author has no interest in "the rule of law".
5
What I find most shocking and saddening is the number of commenters is the sheer vileness in their choice of word in describing those affected by DACA. They can't even bring themselves to use a word that suggests they are talking about people. They spit out the word "illegal", as if these people are vermin. An infestation of vermin.
I left the Republican party decades ago because of how much of this revolting mindset I witnessed. I have never regretted leaving.
8
We must somehow come together to solve our immigration problems brought on by the open border policies of the Liberal Elite. I have seen first hand illegals taking jobs from our non technical college graduates after overstaying work visa's and nothing is done about it. Also, during Hurricane Irma, I was just told that gangs of illegal Haitians came down to the Florida Keys aid stations to steal free supplies like generators that were designated for Florida Keys citizens during their time of need and took them back to Miami to try to sell them. These are the same Haitians that we let into the country "temporarily" after their earthquake and now they refuse to go back where they should be working to put their own country together. America is being suckered on so many different levels during a time when all our wealth has been transferred to Asia through globalization. We can no longer afford to be the depository of "your wretched and your poor". New York spends some 24B a year on programs for the undocumented. Money that should be spent on our crumbling infrastructure! Have you seen the subway or LGA. Please people. Act like a government that puts its citizens first....I am a moderate centrist and I support legal immigration from the Mexican farmhand to the Indian PHD. It is just illegal immigration that I don't support. Why is this so hard to fix?..some would say it is because the Democrats are more interested in supporting the undocumented.
2
If you want to see where this is leading read the excellent article “How Wobbly Is Our Democracy?” by Harvard professors Steven Levitsky and Daniel Ziblatt in the Sunday Review.
https://www.nytimes.com/2018/01/27/opinion/sunday/democracy-polarization...
The author wonders "Why doesn't the administration waste it's time arguing with the 9th circuit"? Sanctuary court?
3
Interestingly, if SCOTUS agrees with Trump court is, "....the enabler of Donald Trump." But if the court agrees with the myriad of appellate courts where the majority decision were virtually all written by judges appointed by Democrat Presidents, the Supreme Court is now, "the firewall between the president and the rule of law."
Isn't funny how Liberals justify their biased accusations as fact?
3
Will the Roberts court serve as Donald Trump’s enabler? Or will the court see itself, as it has on rare occasions at other troubled times in the country’s history, as a firewall between the president and the rule of law?
----------------------
Stop politicizing the Supreme Court, Ms. Greenhouse.
The Court is the third, separate, independent branch of government.
The hate-mongering, the fear, the protests, the populism that led to President Trump's election, and now the backlash in the cities and in the media, have no place in the Court.
The answer to your question? Justice Roberts gave it in his hearings when he was "hired" not only as a Justice, but as the Chief Justice. For life. He will be a neutral umpire, calling the balls and strikes, and enforcing the rules, fairly.
It is up to the Executive and the Legislative branches -- and more importantly, we the people who have elected them -- to decide who we want to represent us politically.
You can't whine, and rally, and intimidate the independent Third Branch of Government. The Founders knew what they were doing in setting up this system of checks and balances. Please note too: the Media is not one of the branches of government, despite their own hype and desire to change the rule of law and how we have always played the game. Go... Team!
3
The question is instead whether the Supreme Court will restore the rule of law against a clearly unconstitutional presidential decree providing a special dispensation from immigration law for a class of illegal immigrants. The only problem with the Trump order is he extended the Obama decree until March.
2
“It just shows everyone how broken and unfair our Court System is when the opposing sides in a case (such as DACA) always come to the 9th Circuit and almost always win before being reversed by higher courts.”
That tweet makes no sense at all. "Opposing sides...almost always win"? Really? How does that happen?
The guy in the White House - I cannot bring myself to call him the president - has a cerebral cortex about one micron thick. That's, um, unsettling.
2
So POTUS number1 can implement this, and POTUS number 2 is capricious if he alters the administrative action of POTUS number 1. Seems very illogical.
3
Linda,
DACA as President Obama executed it was mot constitutional. The challenge in the courts by the House of Representatives would have ended Mr. Obama's end run around the Constitution.
President Trump did the right thing sending it back to the legislature. End runs by liberal judges won't change the outcome.
2
"Will it look that way from inside the justices’ private conference?" It could be interesting.
We can, at least, make almost certain bets on this for Mr. Injustice Thomas and probably for Mr. Injustice Alito. They don't ever seem to let the lunatic side down. J. Gorsuch is a possible but CJ Roberts recently seems to be thinking more about his legacy and less about his political priorities.
The most interesting and, yes, concerning aspect of this article is not the clear setting forth of the legal positions on either side by Linda Greenhouse, but the laden political comments section especially from Trump supporters who ignore the underlying legal questions. It's like a schoolyard brawl where some loud kid makes a cockamamie statement and all his other equally uninformed buddies jump on with some version of "yeah, what he said."
A court's role, especially at the federal level, is not to make decisions based on the "well, he did it, and so even if it was wrong, the next guy gets to do it too" school of jurisprudence. It's to apply the law as written and interpreted throughout time. It's the Supreme Court of the United States not the Get Even Court of the United States.
2
Congress is not going to resolve the dreamer issue. What is next? The daily spectacle of deportation of noncitizens that have never known another country. Institutionalized cruelty. Those of you who applaud the forced deportation of 800,000 , and the rule of law to impose it are the willing complicit guilty to a moral crime. By normalizing this cruelty, your role is to inure your fellow citizens to worse. The dreamer's deportation will be the definitive end of the American dream. After the dream, behold the nightmare.
1
It's complicated. Thanks for explaining it.
I will bet a dollar that the subject becomes a lot more complicated before Easter.
2
DACA's exception was an executive order, not a law. Irrespective on the method, or the quality of Trump's order, a President's order to undo a previous can't be the purview of the courts. Just imagine Trump's orders can't be undone due to one conservative judge in Wyoming. The mere concept eliminates all rule of law. Extremely bad precedent.
1
This could all be easily resolved if the obstructionist Democrats would quit using DACA kids as pawns in an attempt to spite Trump. Hopefully all of those minority groups the Democrats claim to support are taking notice of reality and will vote accordingly in the future.
1
If I were a justice on the SC, I would take the easy way out for now and just send this back to the appellate court for review. What is the rush? The world will not stop spinning nor will the country cease to exist if the court takes a measured approach to this matter.
But these are not normal times and this court has long shown its biases. Bush v Gore, Hobby Lobby, Citizens United, et al, have demonstrated a court willing to enter into political matters at the smallest of pretense. Expect no less in this matter.
I wish it was different. But we have a substantial number of court member who are originalists in their outlook and have repeatedly demonstrated the ability to jump through hoops to arrive at a conclusion that they desire. The simply make it up as they go along while applying the fig lead of “legal reasoning.” I’m not impressed. For these conservative justices, wedding cakes have more rights than human beings.
1
Either DACA is lawful or it is not.
TRump is saying DACA is lawful only if his WALL is funded.
That is NOT a legal argument but holding hostage as pawns the dreamers who themselves broke no law.
Was Trump's pardon of Arpaio who defied a court order upholding the law.
With the Arpaio case Trump essentially said it is permissible to defy a court order if I [L'etat c'est moi, TRump] disagree with the court order.
7
What is "arbitrary and capricious" is the Trump administration's playing to its base base. Trump doesn't care about the law: he's demonstrated that for a lifetime. He does care about his "hall of mirrors" and thinks he is godkingemperor, not president of all of us.
He simply doesn't care. He has found the fast path to destruction, the short path to evil and death, briefly successful and eternally damning: "fascilis descensus averno". This road to hell is not even paved with good intentions. Or as Milton put it:
"evil, be thou my good"
10
Of Course Linda mentions her favorite progressive jurist.
Justice Ginsburg has blabbed past every rule and limit imposed by the precedents of previous SCOTUS behaviour, with her actively politicking and taking part on one side of the say-marriage deal before NOT recusing herself from that case.
Could you say that no justice will ever see fit to recuse themselves after the tawdry, hedonist politicizing of her position that the aging progressive has made a personal rule?
Only the hoped-for Constitutional assembly can fix such depredations as this.
9
High time the Supreme Court enables the president to do his job, for which he was constitutionally elected.
And a few tough words toward highly political ninth circuit court won't hurt either.
7
The Ninth Circus Court is not only Trump's least favorite court, it's the Supreme Court's least favorite court also.
The law is entirely on the side of the President. The precedents are solid. The president has the power to direct enforcement of immigration law. Period. He also has the power to nullify unconstitutional executive orders imposed by a previous president. It's not even close.
11
Is this a joke? Trump's termination of DACA is no more capricious or arbitrary than Obama's enactment of it. In fact, the latter was a clear usurpation of legislative power and Trump is doing nothing other than "faithfully executing" the duly enacted laws of the land. The pretense that this legal battle has anything to do with the Constitution or statue, rather than policy preferences, is laughable. Only down the leftist rabbit hole could the revocation by executive order of a prior executive order, the latter of which had no legal basis whatsoever, be the basis of a lawsuit. Unfortunately, too many partisans dressed up with black robes live in that rabbit hole.
9
I keep reading and re-reading the constitution with respect to the presidents powers on immigration. Every time I read it, it seems very clear. He has absolute authority. There is no reading that I can see that undermines the absolute power over immigration that the executive branch has. It would not surprise me at all that the Supreme court will unanimously find this. The DACA dreamers need to go away. Unless there is a deal to provide them deferred action or to make them citizens, they need to be deported. Sorry, but the law is the law. The democrats should take the deal on the table with Trump. If not, then the dreamers should be deported. This was one of the reasons Trump was fairly elected with massive electoral college victory. For him to go back on this promise would ensure his eventual defeat. He cannot do anything but to go to the Supreme Court and have the finding that everyone knows is going to be made. the executive branch has final authority on immigration. You can spew all you want, but I can guarantee the Supreme will uphold the constitution. You can say it is doing Trumps bidding, but I say the constitution is the key, not some "feeling" that you have in your mind.
6
There was no massive electoral win, 78K voters gave us this incompetent man baby as the POTUS.
Would you distinguish between American citizens/legal residents and anyone anywhere else in the world?
1
Of course, Ms. Greenhouse's explanations come with a point of view. Courts that find that Trump's actions pass legal muster are enablers. Courts that rule against Trump are doing the right thing. This attitude has little to do with any specific issue. It's an overriding bias that applies across the border.
Ms. Greenhouse offers us political analysis of legal matters. She ignores the law and goes straight to the result. If she has any legal skills, she has chosen not to use them. Any liberal non-lawyer looking at the court's cases could do what she does. You could probably do it. I'd apply for the job, but I'm a lawyer and I would get bogged down in the intricacies of the law. Nobody wants to do that.
12
Too late. Thankfully, it's already there.
The answer is to boot ALL Republicans from office in the 2018 election , everywhere. The next step is for Mueller to complete his investigation and outline the money laundering that the Trump family has been doing and have criminal charges brought ASAP against the mentally ill conman in the WH. Impeachment & jail must be the only future that Trump should enjoy.
9
l hope liberal activists show the same kowtowing to Scotus when a 5 to 4 ruling shows some respect for the written law and rebukes "psychic " hacks who know what Trump was "really" thinking the trouble with judicial fiat is that it cuts both ways MAGA
7
It's time for all the Justices of the Supreme Court to BE Justices of the Supreme Court and not agents of Donald Trump (Neil Gorsuch), or agents of the right wing of the Republican Party (Samuel Alito and Clarence Thomas).
It's time for the SCOTUS to shut down this would be dictator, and his diktats and attacks on the whole structure and framework of our Democratic Republic. EVERY official of the Federal Government, from the President, Chief Justice and Speaker, to the lowest-ranking military recruits, swears a sacred oath to protect and defend the Constitution of the United States of America. Too many are clearly violating that most sacred oath.
7
You of course realize that Obama's DACA order was unconstitutional and he even acknowledged that it was. He like a dictator, did it anyway. Trump is rescinding an uncostitutional order and sending it to the legislature where it belonged in the first place. But yes, hopefully the SCOTUS will be Justices and back the constitutional play of Trump.
"Will the Supreme Court Be Trump’s Enabler?" NO DOUBT WHATSOEVER. gorsuck onboard.
2
You mean will they rule according to the law, as opposed to implementing the political preferences of the NYTimes? Good Lord, I hope so-- and I have every reason to believe that they will do so. The fact that this newspaper would describe that as "enabling" Trump shows how far the "news" business has degenerated.
14
Perhaps the SCOTUS will become, as intended, the Constitution's enabler.
Rhetorical questions this ridiculous don't belong in the headlines of such a legendary institution.
9
When the courts try to make law the outcome is always bad. DACA was an administrative act not a law passed by congress. Trump struck it down to force congress to pass a law and to try to clear the immigration mess that the US has been dealing with for 30 years.
10
We would not be having this discussion if Obama had not created DACA. It was not President Trump's fault that we have over 600,000 thousands illegals who want to live here permanently. It was the two previous administrations who did nothing to stop the flow of people crossing into our borders. President Trump promised the American people that he would put an end to DACA but his hands have been tied due to the lower courts overruling him. There must a resolution and maybe the Supreme Court is the answer to this ongoing dilemma. If they cannot solve this people, no one can.
7
They will the courts nowadays seem to be bought off also. One way or another. Unfortunately they don’t care about the law. Decline of civilization.
What's clear from many of the comments in this thread (and in many other threads) is that there are about 35 million voters who would not only favor deporting DACA subjects but would favor deporting all illegal immigrants, so long as they're not white.
And now that Donald Trump has demanded that any revised American immigration law restrict legal immigration to educated whites, those 35 million voters have jumped aboard.
Despite the denials, the immigration battle has never been about legal, or illegal, or chain migration, or diversity, or anchor babies, or birthright citizenship. It's always been about race,
10
Well given that the Roberts Court enabled the Citizens United case, I have no doubt that the same will happen with DACA. The philosophy of the Court has now become the big money wins. Seeing as the DACA residents have no money, I am sure that Roberts and his cohorts will do what they can to send DACA down the drain. Wish I could have more respect, but Roberts, Alito, Thomas, and Gorsuch, plus the wild card Kennedy have proven they put money and politics above country. Scalia voted for Citizens United and I have no doubt that Gorsuch will vote in a similar way.
3
Perhaps the SC will lift the injunction but allow the lower courts to continue to hear the case as they did with the Travel Ban cases (different parts of the injunctions were lifted in the different versions of the travel ban), Hopefully that would light a fire in congress to compromise on DACA so that we get back to congress making the law instead of Presidents and Judges.
3
Having lost control of the Congress and Presidency through elections, the left now wants to continue to rule the United States through misusing the courts.
I trust the USSC will stop this particular abuse.
14
The United States itself created it's own trap on the immigration issue a very long time ago. Big business, agricultural and many other business interests for greed and efficient labor interests allowed this problem to grow continually throughout the 20th Century and now into the 21st, the chickens are here to roost! Business combined with a failure to legislate and regulate on a reasonable, workable solution for the benefit to America and Mexico particularly has created the nightmare the USA has now! I lived in Texas 30 years. So many businesses in Texas rely on immigration to get cheap labor, and harvest crops. This isn't a new issue!. Oil companies, factories, retail work illegals! I've worked with really good workers in retail and factories and any number of businesses where they knowingly hire illegals. How do they manage that? Use your imagination or rather your logic. Same in Cali, Fla. The sad part is for us the citizens and yes, the Immigrants too. And especially the children of those immigrants! It's like a divorce, the kids are trapped in the middle. I have two nieces in Texas who married into a wonderful hardworking Mexican immigrant family. They raised 10 good citizens of the US. The Mother was born in Texas, but the Father, Mexico. It took him years to get citizenship and speak fluent English. All 10 of their children grew up to be fine citizens. Not a criminal in the bunch. The issue can be solved with legislation & a program between the US & Mexico.
6
Sadly, Congressional Democrats have no interest in actually creating legislation to provide a path to citizenship for the DACA kids because it's TRump's idea. How petty.
I laughed so hard reading the title of your column. Have you been asleep?
The SCOTUS is already the reason why we have Trump. On top of that, you can tack on their role in voter disenfranchisement (Shelby county vs. Holder, 2013), Citizens united and a whole host of other cases (incl. hobby lobby) that gave us the current predicament.
We are well on track becoming a full-fledged banana republic in the next two decades (or a lot faster, if the GOP has its way).
I am still laughing!! You are funny.
3
If the law enables something, then what is the issue? Did the law enable Obama to bypass the legislative process?
6
I don't really understand this article. He says that if the Supreme court over turns the lower court ruling they are enabling Trump in breaking the "rule of law". The Obama administration broke the rule of law when they came up with the DACA policy which basically said they were not going to enforce existing immigration law in violation of his oath of office. No matter how you feel about the Dreamers...they have no right under our laws or constitution to be here. As Trump said in September or October....Congress is the only one that can fix it and they need to. If Trump lets the dreamers stay without a change in law he is as bad as Obama for choosing which laws he will enforce and which ones he won't. Whether you like Trump or not I don't think you want the president making law...its not his job.
18
Precisely. This is another 1500 words of tortured verbal gymnastics aimed at weakening Trump, bolstering Alsup (who was overturned by SCOTUS twice in 2017), and further the narrative that the president, acting wholly within his constitutional purview, has acted ILLEGALLY by ending - by executive order - a program that many felt was unconstitutional when it was enacted by executive order.
10
With Gorsuch in the saddle, of course the SCOTUS is going to support Trump 5-4. They have become a thoroughly partisan body. Judge Alsop's reasoning was strictly based on legal reasoning. But that doesn't matter in Trumpworld. It is only whether the Republican partisan agenda will be upheld. This is how Dredd Scott got enacted, and that stain on our national history is still cause for shame today. This likely disastrous decision by the SCOTUS will be an equal black mark on American life.
4
Alsops reasoning defies legal authority.. the 9th circuit in general is an arm of the progressive movement. If Trump were smart, he would break that mess up into 2 separate courts..
6
Yea, what Rocket said, but also......Alsup was overturned twice in 2017 alone for overreaching judicial activism driven entirely by ideology and emotion.
This will be equal to Dredd Scott, Will? C'mon, you don't believe that.
3
Since the Bush administration, we have seen an ever-expanding use of executive orders, signing statements, memoranda from 1600 Penn Ave, all establishing law to varying degrees. It is time, and considerably past time, for this unconstitutional distortion of Presidential powers to be reined in. Obama abused his powers in many ways - DACA, DAPA, H4 work authorizations. These all need to be ended. Trump should have done what he promised, and ended them on Day 1. I will take today in its place.
8
We will see, now wont we? I rather doubt and I surely hope that the Supreme Court doesn't become an enabler for Trump. It's Trump's obvious and totally expected effort to co-opt the court to quickly do his bidding. Shocker! I am in hopes that the court will rightly see the need to send a couple of clear messages to the Trump Administration, the Congress and the whole Country that the serious immigration issue in this nation is actually a very old one. It's not for the SCOTUSt to solve. It's for the Congress to do its job and the State Depart.
1
So you agree with Trump? He is rescinding Obama's unconstitutional order and forcing Congress to do their job. Shouldn't you hope that SCOTUS shuts down an activist judge who is supporting an unconstitutional order by Obama?
If Trump is being arbitrary and capricious then why wasn't it arbitrary and captious when Obama put this executive in place.
Just like Obama had the right to do what he did Trump has the right to do what he want to do.
You can't give Obama a power and then deny it to Trump.
It's as simple as that.
15
I would have thought the Chief Justice might have objected to Mitch McConnell's baldly partisan refusal to hold hearings for Merrick Garland if only to remind Congress that the Courts are an equal branch.
But then... I was disappointed that the Chief who promised "balls and strikes" had the balls to strike down the Voting rights act. Go figure.
2
Will the SCOTUS Become/Be Trump's enabler...? Sure! Why Wouldn't It Be...? On this issue...and on any other...No doubt about it...
Take Care!
Trump is the evil puppet of a hostile foreign power and anyone who supports him is a traitor.
1
Imagine that: federal courts might support the policy positions of a president who nominated judges and justices (and will nominate a lot more). We had an election, and one of the arguments most often offered by Democrats was the effect Trump would have on the courts as president; and what happened? Trump was elected president, even if only barely – certainly in part BECAUSE of his likely effect on our courts.
Trump is most emblematically characterized as a brinksman. He wants congressional action on the Dreamers, and he keeps pressure high to accomplish his purposes. The likelihood now is high that the action will come soon and meet with at least partial approval from Democrats, since they’re being pretty fully included in the related deliberations.
Given the likely legislative outcome on the Dreamers, which should formalize their legal status here while putting them on a path to eventual citizenship, why NOT keep the pressure high on Congress to ACT responsibly, instead of finding their habitual way to doing nothing useful in an important election year?
Linda points to the actions of federal judges who have “called Trump’s hand” on the DACA program, transparently on ideological bases with which she agrees ideologically. Unsurprisingly, a lot of those voters who elected Trump disagree with her ideologically. The Supremes likely will step in, and I wouldn’t be astonished if they agree with Trump, even if the matter becomes moot in a couple of months.
6
“It just shows everyone how broken and unfair our Court System is when the opposing sides in a case (such as DACA) always come to the 9th Circuit and almost[!] always win before being reversed by higher courts.”
A broken system or valiant attempts to progressively drag the rest of the country out of the Republicans' imaginary brown cloud?
2
To me at least, the basic question is whether a President has the right to undo by executive action a policy that a President put into place by executive action. Was Mr. Obama's inaction of DACA arbitrary and capricious? If not, why not? How did Mr. Trumps phasing out of it violate the Administrative Procedures Act yet Mr. Obama's implementing it did not?
18
The institution of DACA was arbitrary and capricious. I don't understand how one executive order can't be undone by another executive order. Congress needs to address DACA before the Supreme Court rules on it.
12
Simple; because the NYTimes likes Obama's executive order-- even if it was a gross abuse of his authority-- and they don't like Trump-- even when he's simply acting under his authority. This has nothing to do with the law or the Constitution; those concepts are mere speed bumps on the road to implementing the left's political preferences.
8
It’s not that complicated. Suppose Obama established a program that recognized you as a rightful recipient of healthcare benefits, you finally went to the doctor after years without insurance, and were diagnosed with a treatable but otherwise debilitating condition.
Then Trump is elected and everyone that receives these benefits is a mooch. He says, “I care about you, so I’m kicking you out of the program in 6 months. I hope Congress cares too. Good luck.”
It’s true that Obama’s authority to say you qualified was controversial, but your reliance on the program for your survival is not. There are many questions in play, but the basic issue is, can the President just decide one morning that you lose what you need, or does it have to be part of a formal process with adequate legal reasoning?
This is administrative law, something that protects the Constitution’s Fifth Amendment commitment to “due process.” It exists, for example, so that officials can’t arbitrarily take away people’s necessities on a whim.
Even the majority should not be able to kick you out of your home, jail you, or deport you to the land of your (non-English-speaking) ancestors, without at least a valid legal reason.
Trump’s reasoning looked invalid so two judges delayed its effect. Trump’s mad.
Due process is a commitment that extends to citizens and others that have substantial connections to America. Will we live up to this commitment during Trump’s term? He’s asking the Supremes for a pass.
I routinely rely upon Linda Greenhouse’s explainations of legal matters. Thank you, Linda! With 47% of the people, in one recent pole, supporting a bullying, lying, name-calling, uninformed, and frankly uneducated Trump, my hope is that the Supreme Court Justices and Chief Justice John Roberts will maintain their integrity and base their opinion on ethics and law!
2
How very unfortunate for you. Her explanation is ridiculous. Try reading the decisions instead of having the information selectively spoon-fed to you by aggressive partisans on an opinion page.
6
If the Supreme Court Justices and Chief Justice John Roberts maintain their integrity and base their opinion on ethics and law, then they will rule against the 9th curcuit court and support Trump's EO. Obama's EO was unconstitutional. Trump is rescinding it and forcing Cogress to do their job to legislate immigration. I too hope the Supreme Court Justices and Chief Justice John Roberts will maintain their integrity and base their opinion on ethics and law!
This article presents a false choice: Enabler for Trump or supporter of DACA. Linda hopes you are gullible enough to fall for it.
The role of the court is to interpret the law. And like it or not, the Constitution allows for ample Presidential discretion in terms of foreign policy. Lower court rulings seem to have forgotten this. Time for the Supreme Court to set this right, regardless of what this means for this case.
8
Gee, SCOTUS recently issued a head-scratching ruling upholding Mississippi's blatantly unconstitutional law permitting state public sector/governmental workers and businesses the ability to discriminate against people if those workers and businesses had a religious or "moral" objection to what they were being asked to do - essentially their job; that MS law also provided some amount of protection against any subsequent liability prompted by the discrimination. What allowed that case to be heard in the first place is that MS doesn't have anti-discrimination laws, but the point is that the decision ignored the question of constitutionality; instead it was rendered on standing issues - the plaintiffs couldn't demonstrate that they had actually been harmed by the law YET.
Here, the Court is being asked to bypass the normal protocols for litigation (i.e. going through the COA) and there are already two district court decisions that have gone against the Trump Administration; on top of that the creation of the DACA program has been ruled constitutional.
Yeah, if SCOTUS ultimately finds for the Trump Administration they will have demonstrated that conservatives on the Court are not simply enablers - they are the worst kinds of enablers, akin to the kangaroo courts seen in Communist countries and in dictatorships or autocracies. HOWEVER, I'll (and this may seem naive on my part) put my money on Kennedy voting against this, and somewhat less money on Roberts.
2
Trump has made numerous statements that call into question the role of our court system. I have no doubt that he would undermine the federal courts if he got the chance. Will the SC react as it did when Roosevelt tried to undermine it in the 30's--placating the President by getting out of his way?
1
The Roberts court gave us citizen's united and you're wondering what they will do?
The Roberts court is a Republican court so it will be 5-4 Republican victory - again.
3
American Judiciary has been partisan for a long time. The Obama judges are turning down Trump's executive orders and so if supreme court becomes Trump's enabler then that will be only fair game. Call it correction by the supreme court of lower court's partisan judgements.
6
What nonsense - if the executive branch feels an administrative order from the executive branch is improper constitutionally they have every right to withdraw it. To argue this is the purview of the judicial branch is to turn the separation of powers on its head.
9
There seems to be a lot of blubbering and whining that controls so much of the country without ever getting a majority of votes - fascism will be served - I think not.
Wow, I have never seen so many right wing responses to a NYT column before. The Nativist agenda, independent of any compassion or common sense, seems to be penetrating the base of the NYT, as it has the the base of the reckless, heartless leader you Americans have saddled yourselves with. Just say the name Gorsuch and be very afraid.
5
The hole thing is a non-issue really. Even if the lower courts are upheld, which they shouldn't be and aren't likely to be, Trump can still end the program at any time by citing a different reason. Just liberal judges trying to plug holes in the dam holding back the flood of immigration reform we desperately need if we are to have any hope of avoiding becoming a feudal society and also stopping or slowing climate change.
1
Scalia ruined the integrity of the Court and it will never be the same.
1
Scalia was the last chance for rescuing the courts from dissolving into just one more mob scene. His one huge mistake was approving the institution of special prosecutors.
In the Founders' time they were all Scalias, but minus his quick wit and warm heart. Let's see socialist progressivism come up with a Scalia-type of man.
2
Scalia wrote that it is not unconstitutional to execute an INNOCENT person who had a fair trial.
Do you consider that as having a warm heart.
Ms. Greenhouse asks: "Will the Roberts court serve as Donald Trump’s enabler? Or will the court see itself, as it has on rare occasions at other troubled times in the country’s history, as a firewall between the president and the rule of law?"
Frankly, I hope the answer is 'neither.'
Indeed, what I hope the Supreme Court does is step back from all of the overheated rhetoric (including that of Ms. Greenhouse), undertake a dispassionate review of the relevant statutes, regulations and decisional law, evenhandedly determine whether this matter warrants the accelerated treatment the administration seeks, and then (whether on an accelerated timetable or otherwise) answer the narrow question of whether the President possessed the authority to phase out the Deferred Action for Childhood Arrivals policy.
After all, one person's enabler is another's firewall.
For that reasons, I would simply like the Court to apply the law, and, in so doing, to apply the necessary degree of deference -- no more and no less -- that is customarily afforded to the President. If it turns out that the President does, in fact, have the authority to phase out DACA -- and I suspect he does -- then the political realm is the proper place to raise grievances, to win elections, to challenge the wisdom of terminating DACA, and ultimately to change policy.
6
If those who would be given Citizenship through the DACA program
wish to remain in the United States and do their best to follow the laws
I have no problem with them becoming citizens.
What I am confused by is the Courts taking what someone has
tweeted or said before a Policy decision is made and reading that
person's mind. Should that not be decided in Court under sworn
testimony unless a conspiracy is involved ?
Can someone explain why we have 9 Circuit Courts and why the 9th
takes in about 1/5th of the area of the United States and about 1/5th
of the population. Is it not time to revamp the Circuit Courts - to say
12 Courts ?
4
It seems to me that we have a constitutional crisis now. We have an executive that undermines the court, a court that undermines authority, and a legislature that undermines the will of the people. We are a democracy now in name only.
8
A total victory for Putin.
3
Enacting DACA was “arbitrary and capricious.”
12
You may call it capricious, but in truth it was an effort to address a problem that the full legislature refused for many years to address. That coupled with their full admitted obstruction of a President they hated and wanted to hamstring and destriy. It's an issue that should have been solved many years ago!
6
True, L.Marie, it should have been solved by the legislature, but nothing in the constitution provides for an "inaction clause" allowing another branch of government to step in and do it on their own. The Congress can no more take on a court case than the president can create laws. We have a separation of powers for a reason and if one branch won't do something it should then it must be addressed with that branch, such as by the voters, not by another. (NOTE: Some people forget that Congress NOT doing something is sometimes an action in itself. For instance, if a president wants Congress to enact certain legislation and they refuse it's not that "they won't act" but they acted by consciously not following the president's request/demand, which is their privilege and right.)
4
Linda, did you appreciate the Supreme Court enabling FDR and his Brainless Trust to rob the American public? Did you think, "Yeah, that'll show 'em!" when he threatened to pack the SC with his toadies, intimidating the Justices and forcing them to back down from throwing out the policies he rammed through Congress which were prolonging the Depression?
Of course you did. Because you love it when a Regressive thief steals from hardworking Americans. But you hate it when that Regressive thief is NOT a Democrat.
4
You're absolutely right KarlosTJ. Among the many thefts of FDR are: the Lincoln Tunnel, the water way in Austin, rural electrification, the Appalachian Trail, the Purdue Music Hall, the CCC, the GI Bill of Rights, the Federal Housing program, the sewers of Atlanta, etc. He also restored the faith in America nearly destroyed by Wall Street with his fireside addresses, and beat back the isolationists and the anti-Semites, such as Lindberg. He mobilized America to win WWll. Do we really need more failures like FDR?
2
Don Alfonso - you're absolutely right. Every public works project was a waste of taxpayers' money. But you have to look at the process objectively - instead of like a get-something-for-nothing-that-someone-else-has-to-be-forced-to-pay-for thief.
Wall Street didn't "nearly destroy" America - the Federal Reserve did, and it admitted as much when M. Friedman and A. Schwartz documented, and Ben Bernanke conceded. You REALLY need to get your facts straight, instead of listening like a zombie.
1
DACA has NO status in law. The POTUS is not the king. The DACA order was Obama's alone, made with his pen. When it expires, DACA should die. How can the POTUS make, out of whole cloth, a program affecting millions? Answer: He cannot and should not be allowed to.
14
What am I missing? Didn't DACA come to life through Obama's executive order? And if so, can't it be killed by the current p[resident's executive order? After all, maybe that is one reason Trump was elected.
19
Sometimes employees, relatives, friends, police, soldiers, courts, legislatures, government officials and staffers, citizens, and voters just have to do what is right and not what is supposedly our law.
Anarchy you say?
In the 2Q1900 it was clearly against the law in Germany to shield Jews. It was also clearly against any higher law that makes humankind worthy of existence NOT to!
Dictatorships construct "good" legal arguments and justifications for their depravity or self-serving purposes all the time. Directorships and criminal organizations "own" governments and courts all the time. Especially if we let them with laziness/narrow thinking.
It is necessary that honest, courageous, and truly righteous people stand together against the wave of evil/destruction that will emanate from demagoguery, directorships, and criminal organizations. They must be vigilant and act with urgency.
Only people that recognize the HIGHER LAWS that dictate our continued survival as a species and that will act on those laws will save us from our own and others depravities.
Evolution had millions of years to formulate what works. We are a social species predicated on ability to empathize, care for others, and cooperate for the greater good.
Not a question of Conservative or Progressive but rather a question of our good and intellectual honesty vs. their evil and mendacity this Administration poses. If you don't see it - god help you - god help us.
4
I haven't read a Constitutional Law case book since I graduated Yale in the 1960's. I mention my law school because some of the clowns who went to the same school are an embarrassment. No, the thief, Gorsuck, didn't; but, liar Alito, did.
However, I'd be hard pressed to find a decision that isn't a rationalization of their preconceived right-wing notions. We ain't got a Black, Warren, or Brandeis among them.
3
Wonder how the "peripatetic" Ms. Greenhouse would feel had the supremes stopped #Obama from implementing DACA in the first place...
11
Isn't the Supreme Court about the rule of law and defending the citizens' rights and the constitution?
It will be no more an "enabler" for Trump than it was for Obama despite his free-bee from the Court for his healthcare uber alles--now dying.
Not to worry, though, Obama appointees will continue to do everything in their power to assure the cultural Marxist parade continues.
7
Ahh, Linda, the answer to your question is unequivocally "YES".
1
You are counting on willing hacks like Alito,Gorsuch, and Thomas to stand up to their Great leader!
Dream on.
2
SCOTUS was lost when Gorsuch was confirmed, a turning point as depressing as any in recent history. Trump now has a disastrous puppet justice who aligned with the Federalist Society, Kochs, and other harmful forces.
4
"Norm-breaking", really! Cut out the euphemisms! Try "corrupt."
Linda has posed a question she should already know the answer to.
The question as to the judicial integrity of the Roberts/Kennedy majority was answered in two cases: Citizens United and Shelby County.
In Citizens the Court, in speciously overturning a 100 years or so of First Amendment jurisprudence, knowingly unleashed a torrent of untraceable dark money from alt right disinformation machines funded by the likes of the Koch brothers et al. which work hand in glove with the GOP to redistribute wealth to the robber baron class.
In Shelby the Court ignored the overwhelming will of the Congress and the W administration in 2008 in renewing the preclearance provisions of the Voting Rights Act for Southern states that had a long and storied history in denying blacks the right to vote, with a predictable result of those same states, like NC, where I live, crafting voter id requirements “with surgical precision” to disinfrachise black voters once again.
No one can seriously believe that the Court as currently constituted will do anything to uphold the rule of law when it comes to Trumpo’s
authoritarian/racist agenda.
6
We have a constitutional crisis on our hands. One president decided to ignore the law and protect millions of illegal aliens from deportation. President Trump concluded that this decision was wrong and is getting rid of it. Two judges ruled that president Trump was acting illegally.
What we have today is these judges effectively announced that executive decisions by Barack obama have the power of a law which was passed by congress. This is a constitutional crisis.
Not n,y we need the Supreme Court to take on thus case, but we probably need to investigate the judges for an attack on our constitution.
7
It will be fascinating to see how Gorsuch decides this matter. If there is any Justice who absolutely owes his seat on the Court to the political machinations of the Trump regime and the GOP Senate, it is Neil Gorsuch.
Prudent, independent jurist, or hack? That is the question.
4
If SCOTUS does not check POTUS, our little experiment in self-governance is surely over.
3
But "check" which POTUS, the one who enacted an executive order or the one who decides to rescind it? After all, an EO is NOT a duly enacted law.
3
When the Constitution can be twisted by any word salad ("original intent"? oh, please)... why wouldn't a Conservative Court support Trump?
1
50 years of documents on the answer to your question are at
https://www.legalreader.com/republican-racketeers-violent-policies/
Small correction: Obama's other deferred action program --DAPA-- would have given protections to the parents of US citizen or permanent resident children, not DACA-eligible children. The administration considered extending the program to the parents of DACA recipients, but concluded it did not have the authority to do so.
2
What a twisted chain of logic.
Embellishing it with trendy behavioral psych words like "enabler" do not disguise the twists.
President Obama somehow had power to enact DACA?
because Congress supposedly "failed" to act?
-- i..e. "failed" do do what Obama thought it should do.
But yet his successor, President Trump, does not have power to revoke it?
Judges have power to obstruct a President, as Chief Executive, from following a different course of "prosecutorial discretion" from his predecessor?
Absurd on its face.
Further, lower court judges have that power?
To obstruct Chief Executive action immediately, before final judgement --
on a nationwide basis?
Swift "review" -- i.e. supervision and oversight --
by the Supreme Court of assertions of that power by lower courts
somehow "enables" the President?
Direct review by the USSC
-- i.e. directly -- without insisting on a slog through the tortuous path of intermediate review by intermediate level courts --
somehow "enables" the President?
All that is "unusual"??
Well, if it is unusual, it ought not to be.
The USSC can -- and ought to -- exercise firm and swift oversight of every lower court judge who tries to assert nationwide jurisdiction over the President's actions -- and obstruct them -- all the more so when the lower court does that before its own final judgement -- as BTW in the case here.
6
No matter how you look at it the so-called Dreamers are illegal in the US, and Obama's DACA was unconstitutional. The Supreme Court should be the enabler of the US law, as is, and not of social engineers and de Democratic open border agenda.
8
Seems to me we're all guilty of enabling him....
1
I’m in love with Linda Greenhouse’s mind. I know that sounds suspicious a day after Valentine’s Day, but I just can’t seem to shake it.
1
Remember when Roberts delivered that tie-breaking vote that saved Obamacare? Roberts did NOT do that because he cares about the American people. Roberts did that because he understood that voting AGAINST it would have been such an incredible blind-partisan act that it would have seriously damaged the Supreme Court's legitimacy. Guess what? Now Roberts is facing that terrifying situation AGAIN. If the court votes AGAINST DACA, it will have lost ALL moral standing; it will be exposed as the partisan republican tool that it really is. And I, myself, will NOT accept its legitimacy any more. As many other Americans won't, of that I am sure. Someone once said that when the Republicans went crazy, we basically entered a "cold civil war". Coming to think about that; SCOTUS voting down DACA will be another coal in the heating-up fire (read: Trump administration) that is underneath that cold pot.
We know we have a conservative Supreme Court, but its ruling on this “petition for a writ of certiorari before judgment” may tell us much about its willingness to carry Donald Trump's water bucket.
1
Gorsuch believes like the Federalist Society that only the propertied should be allowed to vote, so curb your expectations.
2
Impeachment is a cumbersome and difficult process. What's needed before our 2020 election is a Constitutional Amendment making the Office of President a purely honorary position with no real powers whenever buffoons like Trump are elected, making them something like the Queen of England for the duration of their terms. One way or another this country needs something better than impeachment to get rid of disasters like Trump.
2
As long as Trump is President he has the same right that Obama had to act thru executive order
A constitutional amendment can not get rid of the Constitution itself and therefore would be unconstitutional.
You have to accept that Trump is the President and give up your hope he will be impeached.
Trump can only govern if the majority of the Congress support the policies he favors.
Many of the things by the way that Trump is for and you are against would not change if Trump is impeached as Pence would become President and he would do what Trump is doing so you would have gained nothing by impeaching Trump.
If you don't want this disaster to continue the power the Republican have in the Congress has to be taken away and the only way that can be done is by voting them out of office.
I think that can be done.
It will take effort.
A good place to start is where you live.
If the Democrats can taken Texas they will do this.
You can make this happen.
1
Meaning that the unwashed masses don’t deserve to choose their president and we need a clause so you can override the choice of the masses if you disagree. Why not save yourself the trouble and just ban all those who disagree with you from voting. It’s cleaner and more honest that way
1
A suspicious number of constitutional experts have entered this comments column, defending us against a "left-wing" court in San Francisco, giving POTUS "the power to make decisions in the shower if he wants to," and supporting "a congressional solution, which is far better than a politically motivated one by activist judges." Comments like that sound, well, sorta, like Trump himself.
3
This writer is one of my favorite of all time and I deeply respect her opinion but TRUMP is to toxic for these Justices to soil their legal reputations. Ruling on the wrong side of history for a Russian asset is not in the cards.
Trump administration can not deport any Dreamers that were registered because the information they provided to federal government was given voluntarily under the notion that it would not be use to detain and deport them. This would be a form of entrapment. The underline base for the E.O. under Obama was to give Congress time to come up with legislative solution. They has not happen. Trump gambled Congress would. They won't, unless t Paul Ryan abandons his party and allies with the Democratic party on the issue along with as many Republicans he can muster. That is not going to happen. The Supreme Court must step in and block the E.O.
1
The Supreme Court is a wing of the Republican Party. So what can we expect?
Suppose SCOTUS delvers an an angry "no," as the Watergate counsel felt *they* risked in asking for an expedited hearing on the Nixon tapes? Suppose the ruling contains a sarcastic reminder that the Supreme Court is at least entitled to the benefit of the Appeals Court's thinking on the application? I think Trump may be headed for a slap. Of course if he gets one, that will just go to show (as far as he is concerned) that the judiciary is part of the bogeyman under the bed he and his acolytes call the "deep state." The only deep state is the state of denial he and his acolytes are imposing upon themselves.
1
It is hard to even imagine Alito or Gorsuch ever doing anything decent. That they will come up with a rationalization for anything that will intensify human misery. I think their whole adult lives have been just waiting for an opportunity such as this. Thomas too I guess. But I am more certain of the other two.
3
You are absolutely right. But I would like to extend your argument a bit. Making other people's life miserable, I think is the NUMBER ONE motivation that drives Trump. Our miserable excuse for a president gets off on that. Why? Just because he can. Like that bully on the schoolyard.
It was more than obvious during the State of the Union Trump expects Neil Gorsuch to be a loyal vote. Based on reporting here in the NYT Gorsuch kowtowed to Trump while a candidate for the Supreme Court when he thought he had lost favor. He was obviously uncomfortable basically being called out as a guaranteed vote for Trump and the GOP agenda. Will he enable Trump to “rule” rather than be allow the Supreme Court to be a check of Executive power? Based on his vote on the travel ban my guess would be no, but the look on his face during Trump’s speech gives me a modicum of hope.
Justice Neil Gorsuch has a job to do. Why else would Trump brag so much about installing him? Gorsuch knows exactly what is expected of him. But since he has demonstrated arrogance, contempt for workers, and support for the imposition of religious dogma (where real or masquerade of convenience) of others it won't he is predisposed to support Trump's agenda.
1
How is "this president" a rule breaker? Did Obama have any legal support of enacting DACA? And if he could enact it with an executive order, why could Trump not get rid of with an executive order?
5
What is still galling, and always will be, is that the GOP stole the last vacant seat. Republicans are accessories to the murder of our democratic institutions and norms.
2
"Will the Supreme Court Become Trump’s Enabler?"
Yes
With Justices like Gorsuch sitting in Merrick Garland's seat, expectations for legitimate and honest jurisprudence from the Supreme Court should not be very high.
3
That's the entire point. Pack the Court, gerrymander and cheat. That's the only way the GOP can " win ". Just saying.
Thanks, GOP. NOVEMBER.
1
I don't understand.
If DACA was illegal, then it was illegal and should be eliminated immediately.
If it was legal for a President to unilaterally create DACA, then why isn't it legal for a later President to unilaterally repeal DACA?
5
The present Supreme Court is composed of eight justices and one injustice, Gorsuch.
I hope that Roberts has enough pride not to let the Court that bears his name go down in history as a tool of Trump.
3
@Valerie
I disagree that the Court is comprised of 8 justices and one injustice. I make out the body count as 5 justices and three bozos: Gorsuch, Thomas and Alito.
“It just shows everyone how broken and unfair our Court System is when the opposing sides in a case (such as DACA) always come to the 9th Circuit and almost always win before being reversed by higher courts.”
Trump does have a point here, doesn't he? They always go to the west coast to anchor their case and virtually guarantee their court victory. Brooklyn, Virginia - pretty safe backup, no?
Ms. Greenhouse is a smart advocate. Her approach is essentially to deify court opinions which hamstring Trump. When courts rule against future Democrat presidents watch her reverse course and cherry pick arguments which trash those future nullifying opinions.
5
Despite a written constitution, America has long had an ambiguity to law; it often begins as flexible and then becomes stern (and vice-versa) as the norms of society changes based on consensus. National consensus, currently, is that America should not deport its Dreamers. It would, therefore, be contra-American to do so. That alone would hurt America and its reputation. Worse, however, would be the longterm knock-on effect of losing many bright minds that this country clearly needs in abundance. America would be seen as an unwelcoming country; insular, unfriendly, pitiable: A Contra-America quickly devoid of friends.
Let Congress act unhindered by premature judicial review. Let the Court of Appeals read the submissions and hear the arguments, issuing a reasoned opinion.
In other words don’t let Trump leapfrog the rule of law.
Yes more than the Dreamers is at stake. What Ms Greenhouse is arguing is that once placed, an executive order cannot be undone except by Congress. What she argues is that Trump can lay out any executive order that is constitutional and the next duly elected President can not undo? Huh? Apparently Democracy has no roll in her universe. Like it or not Trump has this authority, and its a scary world where un-elected judges can replace elected legislatures and executives
4
"Will the Supreme Court Become Trump’s Enabler?"
I don't understand the question.
Do you mean, will the SC be an "enabler" in the same manner in which the Ninth Circuit Court of Appeals acted as an "enabler" of the "resistance" to immigration policy being set by POTUS?
6
The most disturbing aspect about the district court’s decision is the phrase that indicates the attorney general can’t declare a law illegal. The AG is the nation’s chief law enforcement officer. A member of a co-equal branch of government. His interpretation is just as valid and not a job solely reserved for a district court Judge. A prior AG refused to enforce certain laws regarding marijuana possession- also well within his right. Congress could have amended laws, called for hearings, etc. Checks and balances all around in a circle between three brances, not flowing just one way.
3
While the wave of nativism and paranoia that helped propel Trump to office is loathsome, his motivation for doing so suspect, Trump is right (for once) to try to force the issue back to the legislature, where it belongs. The only reason Obama implemented DACA by executive order--to cries of "executive overreach!"--is because the legislature refused to act on it then. But I do take the article's point about the attempt to do an end run-around "so-called judges". Hopefully wisdom will prevail. Too bad for the Dreamers their plight has become such a political football.
This is a valuable explanation of the legal details behind how we got to this on DACA. It was not substance but rather procedure, in which the Trump Admin trapped itself and then tried a short cut.
However, there is also an issue about use of the courts for political purposes. Of course we've always done that to break out of political problems, as with Brown vs Board of Education ending separate but equal.
However, the reaction to the surprise election of Trump might be a new higher level of this. The Court might step in to set limits, as it did with the Hawaii court already.
2
The job of the Supreme Court is neither to enable or disable any other part of the government. Its function is to determine the constitutionality of any action taken by other agents, and to disable or enable legislation and other pronouncements, and it is the function of the Justice Department to enforce their pronouncements.
7
The Roberts court has enabled the GOP. Why not enable Trump? Neil Gorsuch is the GOPs justice. He'll probably do whatever the GOP wants him to do. The only thing we can hope for is that someone on the court who regularly votes conservative or in the Trump administration comes to their senses and realizes that it's not in our best interests to deport people who have lived here most of their lives. Then again, given the revival of nativist sentiment in America, I don't see that happening.
3
Are we still a nation of laws. Really that's the only question that matters. Will the supreme court decline to intervene and allow the DACA question to wind its way through the courts like the ACA cases or will they allow the Trump administration to leapfrog forward and ignore proper procedure. Whether you agree with DACA or not is irrelevant, right now our legal system is what is supposed to protect us from overreach by the other branches. Checks and balances were created for a reason.
3
The idea that foreign citizens who are here have less rights other than voting is not in the Constitution. Quite the contrary.
A key element of the administration's argument is the premise that non-citizens have less constitutional rights than citizens, which has also been the defacto rationale for many INS and ICE policies and practices. This idea has a long and ugly history in the USA. It took the 14th Amendment to partly (Jim Crow) overturn the idea with respect to slaves. From John Adams to Wilson, Alien and Sedition laws likewise assume lesser legal status for people who are not citizens, as did the Trump campaign. I was part of the Census Bureau's 2017 intermediate census, which has several questions about whether I had Hispanic or other undocumented people living at my residence, using the census I am required to answer as an enforcement tool to compel my testimony.
Most current citizens did not earn their citizenship through service or study. They are citizens because they were born to it. Non-US citizens are citizens of other countries and deserve the same respect here we demand for our citizens abroad. The Court has included non-citizens in 1st and 2nd Amendment decisions. Per the 14th Amendment, non- citizens are entitled to all those same Inalienable Rights and to expect the protection of the Court.
9
It's a pity when people don't even know anything about of the constitution and create rights for illegals out of thin air.
1
when the government “abruptly changes course and terminates a program on which so many people rely,” the Administrative Procedure Act “requires a more detailed justification.”
Perhaps this reasoning could be applied to the new tax law, which eliminates much of the deductibility for high-value real estate.
4
Trump decided last September to end the DACA program so that he could use it as a bargaining chip in the recent budget negotiations and now in the debate over an immigration bill. This is totally a political move and therefore not a valid justification for changing an existing program that so many people have come to rely on.
7
Let's change the circumstances. Assume that Trump issued an executive order stating that the federal government would not enforce environmental laws against municipalities that had been dumping sewage from treatment plants that had been in use for at least 10 years. The argument would be that the cost would be an undue burden on citizens.
Then when Trump is voted out of office, his successor reverses the order and gives cities a certain amount of time to comply - or to get the law changed. Would any court find that deciding to enforce existing law required the government to jump through all sorts of legal hoops?
16
Issues of law are determined by facts and logic. You're creating a false analogy - a logical fallacy - so your argument necessarily fails. A decision to reverse course on environmental law enforcement does not deprive any individual of a liberty or privilege previously extended to them by the federal government - save perhaps permission to endanger the public health for profit. That's not comparable to threatening to break up families or to deport human beings who have never known life outside of the USA. Moreover, if Trump, or his successor, issued the executive orders in your hypothetical, those orders would be subject to the same legal analysis and procedure as the wanton decision to end DACA.
The Court itself has already been enabled to go to the extreme right by a Republican Party empowered by money to distort voting rights and ignore Constitutional obligations by the Senate to hear candidates for the Court by a sitting President. It’s all legal and all put in place through the power of money to distort voting rights.
3
One way to possibly remove politics and ideologies from judicial appointments is to remove this power from both the president and congress. Let that would likely leave the judiciary with the responsibility to find good candidates and approve them. Checks and balances works in theory but the theory falls apart quickly when there's single party rule as we have now.
The process for any justice ought to include an application submitted by people who have the education, experience, temperament and wisdom the position requires. What we have now is an increasingly corrupt system where politicians look for and approve those justices who will likely support party ideology.
If we don't correct the process, it will get worse and perhaps to a point where it can no longer be corrected because we have lost control.
On the surface, this would seem a simple case. Executive orders issued by a president are NOT law and can be rescinded by subsequent presidents. This is what Mr. Trump has done. There has always been a question of whether DACA was constitutional. If SCOTUS is to hear anything on this case, it should be whether or not DACA holds muster constitutionally. Jumping to the Supremes is simply saving time as the loser in the Ninth Circuit is sure to appeal.
16
You're argument ignores and obfuscates one of the principal reasons for the procedural rules - that the arguments on both sides of the issue can be more fully developed as the case proceeds through the appellate process. This is an important attribute of the procedural process the value of which is time and experience tested. It would be a mistake to cut short that process for reasons of political expediency. That is the method of autocrats. It puts the health and viability of our democracy on a dangerous path.
2
I agree with Miss Ley that the Dreamers should be protected by extralegal means if necessary. We personally would gladly hide one or two of these young people away from ICE ourselves. If a million or so American couples performed this act of civil disobedience, trump would probably attempt to arrest us all until overwhelming public opinion finally forced the republicans to act responsibly, or it might possibly spark a second civil war. I am betting on the former (fingers crossed), but it will be ugly, of that I am certain.
1
This issue shouldn't even be coming before the court.There's been plenty of time to correct this and come up with some final decision on how to treat the dreamers as far as residency our citizenship. Our problem is, when something is issued by president insured of a law being passed, then another president can come along and undo it. Trump met with Pelosi and Schumer last year and told them if they would put a bill on his table he would sign it. Was even any work done on that at all? The problem is that there are people on both sides of the aisle that want a scorched-earth policy in action. Some who want to give a blanket permission to live here and other who want them all to go back across the border. So we haven't gotten anywhere. This could be solved if the two sides would work together. Blaming one side or the other ends in failure, just like it has done the for years. Maybe if the court backs Trump, the two sides will realize they have to work on this and do their duty instead of shirking it if anything is going to get done to solve this dilemma.
"Will the Roberts court serve as Donald Trump’s enabler? Or will the court see itself, as it has on rare occasions at other troubled times in the country’s history, as a firewall between the president and the rule of law?" Oh please is this a drama class or a legal position?
Well I think the author is showing her beliefs here. I think the court, if it chooses to visit this issue, will do neither. It will clean up another example of Presidential overreach and governance by fiat by ruling on the facts. Does the executive have unfettered power or does it need to follow the separation of powers doctrine?
7
I know this is a country supposedly made of laws that must be obeyed...or else. But we ought not forget we human beings, as imperfect as we are, have inalienable rights to belong to mother Earth, each with unique insights and capabilities to contribute in improving our lot...if given a chance. This requires not only reason and common sense, but justice; and the discipline to use our freedom for a shared goal of solidarity, and prudence to do what's right. And our conscience knows it. For once, at least, let's hope the Supreme Court will decide things with their conscience...instead of a partisan loyalty not bereft of conflicts of interest. I confess ignorance in understanding, fully, 'lawyerspeak', but it doesn't take genius to tell right from wrong.
An executive order, however, is not law and thus not due the same level of credence and set in stone approach that some think it merits.
2
You expect the US Supreme Court to give lawbreakers a pass out of sympathy?
That is what you want from a Supreme Court?
2
I understand that laws are created by us so to adjust to basic principles and rules we deem necessary to maintain or enhance equal treatment, and for justice to get a chance to be applied to human beings like you and I, when sharing our lives as social beings. Sympathy is not included but that's why we have humans in position of authority, and not machines, to recognize the exceptions we must make to enhance our humanity and a sense of compassion when reason and common sense demands it. If you were jailed for cause, wouldn't you expect to find a chance given for rehabilitation? Perhaps not, if your 'heart' is closed to feelings.
Presidential elections are really always about the Supreme Court.
The selection of judges is THE lasting legacy of every president.
The more selections to the bench, the more they will enable retrograde decisions in line with the agenda of the president.
Since this president's agenda is CHAOS and DESTROY and ENABLE THE RICH...well, he's going to create it with the help of the judge's he selects.
2
Actually the fate of our democracy matters more than everything you included in your article. This court will eventually be required to hear a case relating to the Russia investigation because congress is criminally complicit in this conspiracy to undermine the United States of America.
Their decision will be either to help the president elude justice or condemn him criminally like Nixon all those years ago. They must remember the founders created our court system to be a check against tyranny therefore, they are literally our last hope to keep the worlds oldest democracy and our country alive.
3
DACA has no legal basis. Ending an illegal or unauthorized program is not “unconstitutional.” If the US had enforced the laws it does have, this would be a nonissue.
In 1986 (supported by Cesar Chavez), an amnesty was proclaimed coupled with penalties for employers to hire illegals. It was going to be the final amnesty.
Two years ago, most Americans did not know what DACA was. At least now, there will be a congressional solution, which is far better than a politically motivated one by activist judges with no legal basis whose dictums cannot be modified.
54
Next time try actually reading the article you comment on. Neither judge said Trump's order was unconstitutional in its substance. They said it was improperly framed And issued.
BTW the 1986 amnesty was not only supported by Cesar Chavez. It was also supported by Ronald Reagan and, in fact, his support was far more consequential than Chavez's was. Funny how you picked Chavez to mention.
6
You assume the result. Certainly we can focus on criminals instead of deporting honest, hard-working, innocent people that benefit the economy.
Deporting the youthful, productive, tax-paying labor force is an idiot's policy.
2
It's up to Roberts and Kennedy. Administrative law tends to be vague and easily complied with by an agency. Not this case. The equities and the procedure are overwhelmingly against the administration. So maybe one of those two will decide to do the right thing. This time. But Trump wins anyway. C'mon, this whole ugly maneuver was simply smokescreen strategy, a Trump and GOP specialty. Everyone-even POTUS-claims to love thse plucky youngsters, the ones we want to kick out! But they were in a vulnerable legal position. And Trump needed some victims to throw to his base. Win/win. It obviously takes up Nancy Pelosi's time to the exclusion of other topics less heart-warming but still relevant. Like elections in November. Who's running for office and where? Voters are motivated. But who's running the Democratic organization? Dems are always on the defensive and distracted, playing Trump's game. And the media must follow as if on a leash. Internet activity fuels and rules the coverage decision. And how much of that internet activity is coming from Russian-sympathizing bots and disinformation groups? Of course the Court could slow the decline in the rule of law down, maybe, temporarily. Like if both Roberts and Kennedy decided to the right thing. At least Linda still has some hope. But Trump loves a good lawsuit. So he'll keep outraging us. And some brave souls will fight back. But it's ok. And he doesn't even have to pay the lawyers. We the victims do.
1
The argument that the president had to comply with the APA to rescind DACA is laughable. Among other things, it ignores that fact that Obama established DACA without any attempt whatsoever to comply with APA requirements.
The Supreme Court will uphold the rescission by substantial majority, quite possibly 9-0. Same for the immigration ban. The President’s powers under the constitution don’t change simply because we don’t like the current officeholder, or because he issues clearly constitutional orders that we disagree with on policy grounds. Ms. Greenhouse knows this, which is why her article is so disingenuous. She can do better, and should.
22
Toward the end of the article it states,
But that “pithy conclusion” of illegality was not the attorney general’s to reach, Judge Alsup said in his opinion, explaining that “determining illegality is a quintessential role of the courts.
So I guess the Attorney General of the United States doesn't have a role in determining what is legal.
1
It’s funny how the APA didn’t have to be followed to implement this but suddenly a judge thinks it now applies to change or end it.
5
Oh, Ms. Greenhouse, I hope that you are correct. But what stands between law and ideology is this abomination of a Roberts Court. It (its Republican majority, anyway) long ago signaled its intention to acknowledge money and monoliths as speech. Justice Kennedy reached the jaw-dropping conclusion that the self-correcting mechanisms in the human condition would mitigate against any abuses to the commonwealth.
The wild card, of course, is Justice Gorsuch, whose un-Constitutional presence on the Court provides the Roberts Court an unprecedented opportunity to rubber-stamp racism into the framework of national immigration policy. And the issue, for Donald Trump, is transparently race-based. His overriding desire, as president, is to neuter every executive order ever published by Barack Obama.
The Court, of course, understands the deleterious and harmful intent of the Trump administration’s plea, but it’s difficult for me to suppose that if it interpreted gilded coin as the legal (and political) currency of the realm, that a minimum of five would find innocent American children (unknowing hostage to the decisions of their parents) guiltless and therefore culpable.
As you wrote, Ms. Greenhouse, past editions of the SCOTUS, in times of urgency (Brown vs. Topeka; U.S. vs. Nixon), saw their way to justice through duty and law. One would have to subscribe to Justice Kennedy’s remarkable application of law and custom to hope that ideology will not be the Roberts Court’s guide here.
2
Right - because we can't have the supreme court being the ultimate judicial arbiter in our Republic.
After another District Court displayed massive and dangerous overreach by rendering an unconstitutional and HIGHLY politicized decision to ENABLE a liberal narrative and agenda...
The recent brazen politicization of the judiciary should be deeply alarming to ALL Americans.
15
So it was okay for former President Obama to apply by executive fiat a rule that treats an entire class of persons in the US in a manner not provided for in the actual law, but if the next president decides that the law should instead be enforced as written and duly enacted by the legislative branch of government, then suddenly that's a threat? A president, just like an unelected judge, is not granted the power to legislate and make up laws, even when something seems "unfair" or popular or even a desired outcome. No more than they can fulfill "a promise" if that promise was improperly or illegally given. Can a president say every immigrant will also get a million dollars and then no one a year later can say no because it was promised? No sillier than what we are discussing.
The bottom line is Obama, after repeatedly saying he could not do what he ended up doing, had no right to create this mess. If anyone is to blame for not "fulfilling the promise" it is Obama, not "the government" or Trump.
21
Before Trump, the Court enabled the GOP with its Citizen's United decision. So, yes, there is nothing that will stand in the way of the Court being Trump's enabler, except for Justice Roberts making sure that he puts the rule of law in front of partisanship.
2
Will the Supreme Court become Trump's enabler?
Is this a serious question? Of course it will. The five right-wing hacks on the SCOTUS were specifically put there to enable Republican presidents, and if anyone doubts it, just look at Bush v. Gore and Citizens United.
5
the old maxim power abhors a vacuum. The conservative nature of the legislative branch [answering to the "people" every two years] and especially the last fifty years, the judicial branch [Roe v. Wade] and [DACA] the executive. Without power through leadership the legislative is bypassed a clear example of what we have today.
2
Supreme Courts very seldom "stand up" to presidents on any issue.
E.g., the military draft was upheld so that Wilson could them thousands of young Americans to die in a war that was not our war to fight.
And in doing so, the SCOTUS did not even cite the U.S. Constitution.
1
It would help if the President spoke English. His incoherent tweet after Judge Alsup's ruling blames "opposing sides" (in Shakespeare's tongue that means both defenders of the DACA kids AND Jeff Sessions, the AG) for "always" going to the liberal 9th Circuit).
The tweet, unbeknownst to Trump, who thought he was excoriating those who oppose his Herod like decree ending DACA, is factually correct because the anti-immigrant crowd went to a Texas Federal Judge, a sure thing, to halt President Obama's expansion of DACA to parents.
One hopes the Chief Justice, who has demonstrated concern for the Court's reputation gets "The Brethren" and Sisteren to refuse to intervene in a matter seized by Congress. If the Supreme Court rules for Trump, the decision will come to be seen as a 21st Century version of Plessey vs. Ferguson, a reflection of the prejudices of the moment which Trump has adopted as policy.
2
In this current political environment, is there really a chance for “Justice”? The Founders of our country had great insight about justice and truly tried to make it fair for all. Time passed and for awhile, it seemed to be working without the distraction of immediate answers from www/.
Now, all of the Justices are no longer just shut away in seclusion with fellow Justices using their intellect and experience on what should be fair and just. Now, being human, they not only see and hear things from their closed doors, but are instantly exposed to the rants of our so-called President as he tweets while sitting on HIS White Throne in his bathroom. If any off the Justices are still human after all of these rants, they have to remember who put them there. Does anyone really believe that the members of the current Supreme Court are impartial? Dream on Dreamers.
3
If the Supreme Court's decisions to stop the Florida vote recount in 2000, Heller vs. D.C., the Hobby Lobby and school voucher cases and the dissent in the Obamacare cases are any guide, we already know what the result will be. All of these decisions rested on flimsy or non-existent legal grounds and appear to have been written by the Republican National Committee. Why do you think the Republicans were so eager to get Gorsuch on the Court?
2
Thank you for this clear, careful piece. More and more, I fear the attacks on our courts, whether it be the ham-fisted threats of impeachment in PA or stealth encroachments like this. I hope my faith in the justices is not naive.
2
In this court, Justice denied is just justice.
The framework of this is being distorted. Trumps is not “terminating” DACA. DACA was an executive decision by Obama that in itself is probably unconstitutional.
Trump is simply not renewing DACA that is set to expire in March. Not renewing a program that was set to expire and you disagree with is a logical step.
12
There's a simpler reason for the SCOTUS to ignore this request. Why should they agree to hear it when a lower court is already scheduled to revisit the case on an expedited schedule AND congress is working on legislation that could make the whole point irrelevant anyway?
In other words, it isn't at all clear that the SCOTUS needs to weigh in at all, much less on a short notice, emergency session.
2
Any bets on whether Gorsuch--who seem to be a publicity hound ideologue-- will ever vote against Trump? I thin the chances are better that he will leak from the deliberations to the White House.
Linda, what you seem to completely ignore is the political decisions of the lower courts. If DACA was implemented on the basis on an executive order by President Obama, then a future President has every right to reverse that decision by executive order. You would me on more solid ground if you took the position that the original DACA executive order was unconstitutional as Immigration policy is within the purview of the legislative branch. Many heralded Obama’s use of executive orders when he could not get Congress to pass his legislation. Sorry you can’t have it both ways.
69
Did you read the article? One of the judges explicitly said that Trump had the authority to reverse Obama's ruling, the other implicitly said the same. But he has to follow a legal process in doing so because he's President & not king.
5
The difference is that Obama's EO wasn't disruptive to Americans. No one could reasonably claim that the sudden change in how USCIS treated Dreamers was a hardship. But Trump's abrupt ending of DACA was quite different; many Dreamers have changed their life plans because of the protections received from DACA, and abruptly eliminating those protections is obviously highly disruptive to those who've come to depend on DACA.
2
Those with Trump derangement syndrome are going to make up whatever logic it takes to ensure Trump fails. Same thing the conservatives did against Obama. But 100% of the people that now make up whatever logic they deem necessary to make Trump fail are the ones that were calling out Republicans for doing it to Obama. 100% of them. Hypocrites all.
2
SCOTUS has already been an enabler of Trump via their Citizens United decision. They have put our democracy up for sale to the highest bidder based on logic that even Kafka would be amazed at. SCOTUS has also enabled the long time Republican agenda on reducing taxation via their 1992 Quill Corp. v. North Dakota decision ruling that e-commerce companies collect state sales taxes only if they had a physical presence in a state thus damaging local and state finances as well as main street businesses for the past 25 years.
I have no confidence that the Supreme Court will do what is just and in the best interest of our republic.
1
For years, President Obama insisted that he didn't have the power to institute DACA. He insisted, on legal advice, that only Congress could suspend the enforcement of an enacted statute.
Then he suddenly changed his mind, and DACA was born by executive order.
What if President Obama was right the first time?
Just asking.
16
five of the nine justices have declared themselves constitutional originalists at least to some degree. They do not believe that the court should involve cases they believe are covered in the constitution. This gives them a fig leaf to declare themselves impotent in any case they feel should not involve them. Will the Court throw the case back to a lower court or choose to involve itself in this very political question thus abdicating its originalist stance. Ms. Greenhouse blows the whistle on this question. Perhaps the court needs to focus more on the needs of people in a complex society rather than a document that often only gives vague contexts.
7
In other words, make policy instead of being a law court.
3
thanks for the comment. The Court makes policy with every choice it makes even which cases it decides to take. I do not know how to avoid this. But the spirit of law should In my opinion be the protection of the rights of people and not those who would take advantage of them.
An originalist stance could also be to stop the lower courts from acting contra to originalist doctrine. Just citing that stance does not really answer the question about how the top Court might act on what lower courts have done.
Sincerely hoping that all 9 Justices will by now have come to realize the predicable - and now validated - adverse effects on our Democracy resulting from the Citizens United decision. The Judicial review process is critical to our Democracy - always has been. Time for the Supreme Court to come to the rescue of our country. Do not permit our non-president to short circuit the process.
41
I do hope that question is presented to the Court. However, I hope it comes up to them on very carefully selected facts, with very favorable lower and appellate court action on those facts. It will take a lot to get the Court to take that back, whether they admit they are doing that, or just find some rationale to pretend they are not taking it back just "explaining" it.
The question that people need to ask is whether the SCOTUS is going to rule on this as a matter of law or not. The courts should not be involved in questions of whether DACA, as promulgated by Obama, is a matter of good public policy, but whether or not the next president has a right to reverse it. It was not a legislative creation, and therefore not a law, but an Executive Order. Have subsequent Presidents reversed the Executive Orders of their predecessors? Of course they have. It is only a question of whether President Trump had legal authority to reverse a prior Executive Order.
29
With all due respect, I'm curious whether or not you read the article. As the author explains, it just isn't that simple.
2
There is, however, a sense in which DACA is a contract between the US government and DACA recipients. Requirements were stated and met, and assurances offered.
GE doesn't substitute toasters for fighter jets every time they get a new chief.
Yes, yes, DACA permits were set to expire set to expire and must be renewed at the very least, but there were also clear and emphatic assurances provided by our past and our current President, many times over and in public.
1
This in a nutshell.
How can any court rule otherwise.
DACA is not 'law'. It wasn't passed by Congress.
If every presidential Executive Order has the force of law, and cannot be reversed, then we are in real trouble if President Trump decides to use the power of the pen and start making his own Executive Orders.
8
Of course not.
Associate Supreme Court of the United States Justice Merrick Garland along with Ruth Ginsberg, Stephen Breyer, Sandra Sotomayor and Elena Kagan constitute a majority progressive liberal bulwark against ethnic sectarian national origin bigotry on SCOTUS.
If American law was fair or just or objective or moral it would not matter who was on the Supreme Court. But law is gender, color aka race, ethnicity, national origin, faith, socioeconomics, politics, education and history plus arithmetic. A legal opinion is akin to an editorial or political or theological or historical opinion. The basic ethnical obligation of the American legal profession including judges is to avoid even the appearance of impropriety.
A sage once opined that "the Supreme Court follows the election returns."
6
Are you being ironic about Garland??
Was the insertion of Merrick Garland as an Associate Supreme Court of the United States Justice sarcasm?
@Matthew
Yes. Yes. Plus anger and outrage.
McConnell spent eight years trying to make Obama a one term President then got away with not allowing a Senate committee hearing and an up or down vote in the Senate on the vacancy created by the death of Scalia during the last year of the Obama presidency.
1
My concern is that the Court's ruling on the Muslim ban predicts their ruling on DACA. I would hope they opt to dodge this issue until the appellate courts have had an opportunity to rule. On the merits, this is an administration that thinks the rule of law is for weaklings and that it is entitled to do whatever it wants regardless of the law. Requiring it to follow the rules of administrative procedure would be at least a start in reminding it that it is not yet a dictatorship.
76
Unfortunately we need the Supreme Court to be Trump's enabler because we have district courts that clearly overstep their bounds and try to block actions that clearly belong with the presidency. Just as Obama wrote the DACA directive.
Running to your favorite district court to fight a decision has to stop, why should we have some ultra-liberal SF court blocking to stop presidential decisions where the decision clearly lies with the president.
Sorry dear author but the Supreme Court will correct this wrong, whether you like it or not. Even, whether you want to tag them as "Trumps enabler" or not.
71
Presidents are NOT able to just do anything they want. We do have rule of law and checks and balances - at least so far. Your desire to see an unfettered autocratic ruling by fiat is extremely disturbing.
6
Reinforcing real law and order is not the same thing as campaigning that a political party or other entity is a supporter of law and order. Rational persons plainly see that the GOP is a party not supporting law and order. The GOP wanting to ignore law makes the GOP ridiculously liberal. The GOP promotes chaos as its central mechanism, the opposite of order, whenever it believes chaos benefits the GOP. Persons promoting revocation of law and order ought to ponder, even if they are uninterested in the national interest, whether someday they will need law and order to remain alive. One who explodes law and order today will likely not be able to get it back when they need it. That is why those persons, including the GOP and disordered camp-followers, are working against their own interests and not understanding that they are doing so.
The government’s fighting against the interests of the people in law and order, is bottom-feeding law. Camp followers who support disorder think they are jeopardizing others, and that is true. They are jeopardizing their own futures and that of the nation.
1
This article is about whether or not SCOTUS will fast track this case past the appeals court.
They will not. Sorry. :/
“Our country has a strong interest in the uniform application of immigration law,”
When did we start uniformly applying immigration law? Both Pro-business Republicans, and Pro-immigration Democrats have spent decades NOT applying immigration laws.
If we don't like the laws, change them. Congress needs to act, but in a Democracy we don't ignore laws we don't like. That is the definition of lawlessness.
26
Unless the laws are unconstitutional, criminal or immoral. We are supposed to know not to follow unconstitutional, immoral or criminal orders even if it's the 'law'.
2
And I'm sure you would say the same for states and jurisdictions that openly vow to defy federal immigration law? That is equally lawless, both are to be condemned.
1
First, allow me to thank you Ms. Greenhouse for your always clear, concise explication of complex legal issues and the judicial process. I don't have to have a law degree to read and understand your columns.
Will SCOTUS join Republicans in Congress as enablers to the scourge of America? The answer may put the final nail in America's coffin.
The Republican Congress has chosen to abandon its integral role in checks and balances. Instead of reigning in an authoritarian executive branch, Congress is facilitating its abuse of power.
If SCOTUS accepts the administration's argument that the DACA case is of “imperative public importance” to court-jump the appeal, it will signal that it intends to join the Congress as a Trump rubber stamp.
The court-jumping argument is of national importance, but it has no time imperative since lower courts blocked the administration from deporting Dreamers and Congress is engaged in legislating a solution to DACA. Accepting the case would be judicial interference on the part of the Supreme Court.
America has been brought to the edge of a cliff. Trump and Republicans in Congress have made a mockery of their oaths of office; they are pushing America over the edge. If SCOTUS has any integrity it will find its role and voice spelled out in the Constitution and the intent of the Founding Fathers to establish equal branches of government to prevent the rise of a dictator.
80
This court already is Trump's enabler. George Bush the elder destroyed all respect for the court when he nominated Clarence Thomas to it. The court subsequently debased itself further when it putsched the younger Bush into office. After that it has been one disaster after another, consistently in favor of the superwealthy and against the common man. How they managed to rule for same-sex marriage is beyond me -- I guess there wasn't a major financial stake.
45
Perhaps there was. Gays and lesbians traditionally have had higher incomes, and all things being equal should support conservative economic policies I have long felt that were it not for the homophobia of the GOP, there would be a large contingent of "teh gayz," with money to back them up. Getting rid of gay marriage as a bugaboo would make the GOP far more attractive.
Horror of horrors.
The Supreme Court may rule that constitutionally authorized presidential actions are constitutional.
And worse, existing law, put in place in a bi-partisan manner, may be enforced.
A Progressive nightmare, to be certain.
28
"Horror of horrors"
The author clearly lays out how the President is bound to obey the law, as overseen by our court system. Why is that so hard to understand?
2
Interesting that Trump and Sessions may possibly be hoisted on their own petards due to ignorance and dishonesty.
Had Trump just told the truth that he wanted to end DACA because he considered it bad policy, it would have been beyond judicial review. He probably would not have suffered any greater opprobrium than he has.
How many of us knew of this legal distinction between a policy based decision and a law based decision? How many knew that a policy based decision was unreviewable but a law based one was reviewable and reversible if made in error?
But Trump and Sessions lied. Trump said he loved the DACA people and Sessions said that Obama's order was unlawful. Sessions should have known the above distinction. What a team these two are. And now Trump may have another excuse to berate Sessions.
18
The job of the judiciary is to judge the constitutionality of Trump's repeal of Obama's executive order, not his motivations.
The left is getting scary. The crux of the argument is that the Supreme Court should not enable the laws on the books if said law happens to "enable" the current President's agenda. And the corollary, the judiciary should be activist, but only in the direction desired of the left, which is protecting those who broke the law from those who want to enforce it. If this sounds twisted, it is.
37
Yes, let's keep hearing the same lecture. When it comes to brown people, the law is the law. When it comes to white people in their White House-- well, you know, whatever.
2
When you get through all the verbiage here, this article seems to boil down to one thing: despite what the Constitution says (Congress makes law, and only Congress makes law), we will re-write the Constitution when it pleases us and make Presidents and the courts de facto legislators. It's easier that way: in effect, you only have to persuade at most two people (the President and/or one judge). That's quite efficient, in a country of 325 million citizens.
And it's pretty close to a tyranny if there ever was one. It's nicely dressed this time, and smells good, and doesn't have that clipped mustache, but it's tyranny nevertheless.
112
Good point, however the Congress seems to have given up legislating years ago. At least when it comes to what the majority of the populace wants. After all Congress is beholden to the wealthy and corporations who are their primary benefactors.
18
Even if, George, Congress has given up legislating - something I think is true in many instances - that still does not give the president or judges the right to step in and make laws in their stead. And while many in Congress are indeed often beholden to the wealthy and corporations, please do not pretend that many presidents or presidential candidates are not likewise indebted.
8
The Constitution has not mechanism to require Congress to perform the things it is empowered to do.
If Congress won't legislate, the country still must go on. Somebody has got to step into the breach and cover for the failures of Congress.
Sure Congress could step up and over-ride, but if it won't, then someone has got to do something.
We have three branches of government, and the idea behind that is that they can act as a check on each other. That applies to Congress too, when it simply fails.
2
Dreamers have to have a final status to remain in the country. The decisions of the executive as long as they abide by the constitution don't have to be to the liking of the courts.
Judges are there to interpret the law not to concoct far-fetched and made to measure theories to thwart the executive branch. It is for the voters to bear judgment on the performance of the executive. This blatant judicial activism affords the SC the opportunity to bring into line the courts gone astray.
18
"as long as they abide by the constitution"
The role of the Court is precisely to decide these questions. Why are you trying to deny them their clear Constitutional authority?
1
The president can’t break the law simply because he was elected. It isn’t the job of the voters to figure out whether or not the law has been broken. That’s what the courts are for. Otherwise why even bother having courts?
1
To remain and government action to remove are two very different things. DACA applies to affirmative government actions taken to remove them, not to granting final status or to remaining indefinitely.
You can add to this assault upon the process of law and the courts the GOP state legislature in Pa. The court there has ruled that the state is so gerrymandered that it has subverted the state constitution of allowing for free and equal voting. The result? Now the GOP is trying to impeach the judges.
Let us hope the Supreme Court has more guts and integrity than our enabling Congress.
232
There is a reason they call it the "Supreme" Court; its decisions trump (pardon the expression) the lower courts.
The Supreme Court is supposed to make its judgments based on law, and that is what I hope it will do in this case.
There is a distinct and necessary separation among the judicial, legislative and executive branches of government; and it is high time to stop the politically motivated efforts of lower courts to interfere with the powers of the executive branch. Imagine how the Democrats and their mass media puppets would have howled if the Republicans had tried to use lower courts to stymie Obama's executive orders.
Supremes? Good luck with that.
I am not trained in the arcana of the law & can barely follow Linda's arguments, clearly limned though they are, but it just seems to me that reneging on DACA - a promise made by the government - is just as heinous as earlier reversals our country has made on, for instance, treaties with various native American tribes in the past. It would be neither just nor American.
186
the D in Daca stands for deferred. What promise was there made by the government that has been broken?
2
There obviously are strong opinions about the immigration issue and the merits of DACA. However, these have absolutely nothing to do with the issue before the Supreme Court. You cite "... reneging on DACA - a promise made by the government...". But here are the facts:
1) Laws are made by Congress, not by the President. Yes, a President can veto a proposed law but Congress can override
2) Executive Actions are not laws. Nor are they "a promise made by the government" as you suggest. As was the case with DACA, they often reflect the views and desires of one individual (the then current President) who cannot convince the Congress that his/her views should become law, and so they have not been made into law.
3) Because these Executive Actions are simply the preferences of the person then occupying the Presidency, not actual laws, they can be cancelled or changed by the next occupant of that chair. This is what Trump did, as is his prerogative as the current prerogative. And as I read in the column it appears that even the two judges agree with this view, that Trump is entitled to terminate/change Obamas DACA Executive Order. The issue is simply whether he did it in an appropriate manner.
So the issue here is nothing remotely close to the American Indian situation where some would claim that actual treaties or laws (in either case passed by Congress) were violated or reneged upon.
DACA is supposed to be temporary, so no promises have been reneged on.
I was interested to learn that Switzerland last month passed a law that any migrants who wish to become citizens must first pay back any welfare and other benefits they have received since entering the country. What a smart idea!
1
The last point is the most salient for me. Leave immigration to Congress to sort out. The Supreme Court really shouldn't except judicial process on a self-generated executive crisis that ultimately falls to the legislature to decide. We've been fighting over immigration policy for decades. Why the sudden hurry? Judge Alsup's decision is actually the conservative ruling. Let's not deport anyone until we figure out whether Trump's order to end DACA is legal. If Congress comes up with a solution before that time, the debate is rendered moot and we can move on.
98
Hiw could Trump’s deciding be possibly illegal?
1
Andy: And while we are figuring out "whether Trump's order to end DACA is legal", why not figure out whether Obama's order to start DACA was legal. Why be so one-sided? Alsop's decision is far from conservative. Where was Alsop when Obama created DACA?
1
By this logic, President Obama should have left the dreamer mess for Congress to sort out. Interesting how certain political groups feel that their favored President has more authority under the same law than foes someone with whom they do not agree.
1
The Trump administration invisions the law to be A collection of big menus that Trump signs and then displays to the cameras. Besides having congress in his pocket, Trump has thoroughly brow-beaten the justice department and attempted to discredit circuit courts leaving the Supreme Court as the only wall that protects this nation from becoming a more diverse Poland or Russia. Americans are about to see if Justices Thomas, Gorsuch and Alito are the great constitutional scholars conservatives said they were or brilliant partisans. In Minneapolis we are really excited that “Hamilton” is coming to town; is that because we are lovers of the arts or want to see what a democracy used to looked like?
26
Judge Alsop's, and Ms. Greenhouse's, argument seems to be that "the order to terminate DACA was “arbitrary and capricious” and therefore violated the Administrative Procedure Act."
So now we have it, if they are to be believed, that not only are administrative decisions reviewable by courts (presumably for their constitutionality), but that also the manner by which they are arrived at is reviewable by courts. This seems laughable on its face, but one may allow some reasonableness of this position if we are talking about administrative decisions, rather than the Administration's decisions.
The Act in fact applies to government agencies, and its main purpose is, paradoxically, that the three branches of government (via agency decisions) don't stray into each other's territory. It is an act that regulates agencies, and attempts to preserve the separation of powers (the very separation that Alsop & Greenhouse appear to think does not exist).
In any case, as a result of Franklin v. Mass of 1992, the President is not an agency under the Act.
So forgive me for not understanding how it is possible for a court to review the manner in which a President makes a decision, rather than the decision itself. It seems to me that a President ought to be able to make a decision after a laborious process, or simply because it occurred to him in the shower, or anywhere in between. What court can possibly judge otherwise?
"The future of more than the Dreamers is at stake." Indeed.
65
The President acts through agencies, and this involves rule making and rule interpretation and rule enforcement by an agency. There is no clean line.
3
The decision being reviewed is not Trump's decision to terminate DACA. It is the Justice Department's decision, made by Jeff Sessions, to unilaterally declare the original limited DACA program illegal, a declaration only a court can make. The last time I checked the Justice Department is an administrative agency, not, as Messr. Xavier the Third would have it, Donald Trump's personal law firm. As such it is subject to the Administrative Procedure Act, the main purpose of which is to ensure that the manner in which decisions are made is reasonable, not "arbitrary and capricious."
No doubt this will not satisfy those who believe Trump's mission to demonize and expel immigrants is so important that legal niceties and frills such as the separation of powers can be ignored. Hopefully John Roberts, who has expressed his desire to protect the institutional prerogatives of all courts and the (putative) political independence of the Supreme Court in particular, disagrees.
9
The President presides over the Federal government. Kings & dictators can, indeed, make any kind of hugely consequential decision in the shower, an American President can not.
Perhaps you should consider moving to Russia. It seems to have a type of government that you would find more congenial than ours.
2
Incisive, informative and brilliant as always. I wonder if you hope, perhaps, even know, that some members of the Court read and consider that what you write is "right on." Keep on the beat, please. Don't stop! The information you provide about issues confronting the court and how the court may deal with them is invaluable.
12
On the surface the question is easy. This court has shown that it likes to involve itself on the political side, so that of course it will take the case and decide against DACA. But a more important for the long term question is what is the role of the court in a world that is turning totalitarian. In Hungary and Poland moves by "populist" right wing governments has been to strip their courts of the ability to review laws so that the government can repress at will. Will we also go that way? Certainly the 2000 election decision and Citizens United etc. are not precedents that give one optimism.
30
Congress has had that power since the founding of the Republic and has exercised it, yet the nation still stands. If the law does not deal with constitutional issues, the legislature can ban judicial review and the courts can do nothing about it.
The Supreme Court became The Republicans' enabler with the blocking of a recount in Florida in the 2000 election, giving us Bush II for President.
Bush proceeded to cement the Court as a Republican enabler for the next 40 years with the appointment of Roberts and Alito. McConnell protected that control by blocking consideration of Merrick Garland to replace Scalia.
Add to that the fact Anthony Kennedy has seemingly lost his way, and there is little reason to believe the Roberts Court offers the American people
any protection against the Trump agenda.
The future of much more than the Dreamers is at stake.
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The right thing is to abolish/rescind all immigration policy not enacted congressionally. Failing that, a finding of national security interest can seal the borders at any time. Justices have no role in any of this, nor should they. Immigration policy is NOT a Constitutional matter - irrespective of what attorneys with no litigation to tend to might muse about. And unless an actual contract between persons here illegally and the US Government exists, lower echelon courts also have no role. These constant attempts to make policy outside of the only forum for that - Congress - is the tired trope of the left.
And just as with their tortured bromides that always backfire, the fact of it's repetition, rather than enlisting assent, elicits guffaws and motivates an army in opposition.
13
All that makes DACA a matter of “imperative public importance” after years in which children have grown up to become responsible adults is Trump’s sudden imposition of a shirt-term deadline for revising their legal status. No reason exists for making this decision urgent and for making Trump the arbiter of wisdom in this matter.
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President Trump is as much an arbiter in this matter as president Obama was. Agreed?
2
You need to research their demographics. For example, 1/10th of 1% join the military; 25% go to college; 22% drop out of high school.
I believe an independent judiciary is necessary for a democratic government. I concerned that the Supreme Court of my state and the Supreme Court of my nation are highly politicized bodies. Without independence at the highest level of appeal, how is any part of our judiciary independent? What criteria should we use to determine sufficiency in this most essential branch of government?
9
Some valid points, but it is equally distressing that certain judges or venues are known to be likely to rule against the administration and thus sought in "venue shopping" to secure one of these nationwide bans. The District Courts are making national policy and upsetting the normal process by their increasing insistence on one unelected judge being able to immediately affect a political outcome desired by certain parties bringing a lawsuit. That needs to be stopped and a case like this allows the SCOTUS to not only rule on DACA but potentially limit what these lower courts can do on their own.
7
Blame the Lion of the Senate, Ted Kennedy. It was he who politicized the judicial nomination process in the Bork hearings.
1
"Beyond the president’s grudge against the appeals court, I think the answer lies in a more subtle effort to demonize Judge Alsup and through him, the growing number of federal district judges who are pushing back against the administration across a range of issues."
If I understand this confusing situation, Linda Greenhouse sees this case as a matter of how much the Trump administration will demand of the court on other issues.
The Supreme Court has already been the decider of last resort on numerous contentious issues, from the tapes to the 2000 election.
One of the problems this "hall of mirrors" administration has created is the disconnect between presidential tweets and intricate legal arguments.
Donald Trump is the most transparent president in my recent memory, drowning us daily in tweets that reveal intent. I find it odd that DACA is in such danger when the president is on tape saying, "I love these kids."
He may love them, but he's using them as pawns in a battle with Democrats to transform immigration law into something unrecognizable.
If the court decides something that's essentially a political issue, what else will they be called on to adjudicate in this fractious country?
I think Donald Trump is banking on a conservative majority ruling in his favor, but what if it doesn't?
It's hard to imagine this increasingly autocratic president accepting a decision that doesn't go his way.
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Well, the court doesn't need to decide "a political issue," because Congress has already passed a law that calls for deportation of illegal immigrants. It's the law of the land, and the job of the Executive branch is to properly enforce it.
The legal issue (the one to be decided) would be whether Judge Alsup's analysis regarding the "litigation risk" reason given to terminate DACA is wrong or not.
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Thank you Ms Greenhouse, for your always thoughtful and concise writing! I wish, though, that we could count on Congress to do the right thing, but that's probably not something we can expect.
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In the end, there will be a legislative solution to DACA. It will be reasonably close to President Trump's position, because the President's position is aligned with popular sentiment.
In the long term, the precedent of using favorable district courts to block normal executive actions will become the norm.
When the next Democratic president attempts to do virtually anything, Republican special interest groups will immediately go to a conservative district court and block the action. Then Ms. Greenhouse will sing a different tune.
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I think one of the points of the article is that this has already been attempted by conservatives, precisely with DACA in the Fifth Circuit. Didn't they also try to undo Obamacare this way?
3
Not only do you attack an elected President, you preemptively attack the Supreme Court.
You also show a favorable bias towards a Court that does everything in its power to trash anything coming from the administration.
DACA was not the result of Congress, but of an executive order.
I don't see how the termination, that was not voted on and approve, can be maintained by the Supreme Court.
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Danielle:
I support President Trump, especially on the issue of immigration.
I'm simply raising the issue not only of the ongoing politicization of the courts, but also the ability of a single district court to block executive actions. Democrats who celebrate this type of court intervention will be outraged when a conservative district court blocks the next Democratic president's policies.
If DACA cancellation isn't upheld, the pressure on Congress to pass an immigration bill that Trump will sign decreases. It's doubtful that DACA recipients will start to be deported in any case. Democrats have a clear option to accede to Trump's wishes on border security and visa rules, but may well decide to keep the DACA recipients in play for the midterm elections. That's a risky strategy, so we'll see what they decide.
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"It's doubtful that DACA recipients will start to be deported in any case."
Actually, some of them already are in deportation procedures. The racists in Trump's ICE want them out. The majority of Americans want them to stay.
Don't be lured into thinking American communities will not be greviously harmed by Trump's ICE
http://www.newsweek.com/trump-administration-has-made-illegal-attempts-d...
https://www.newyorker.com/magazine/2018/01/15/when-deportation-is-a-deat...
Ann Coulter says: deport Dreamers first:
https://www.washingtontimes.com/news/2018/jan/8/coulter-daca-deport-drea...
Republican Senate candidate (Trump buddy Arapaio) wants to deport Dreamers
https://www.npr.org/2018/01/11/577123384/deport-them-arpaio-departs-from...
3
The "rule of law" to enable breakers of the law--and the procedural options of the appellate process (in which the United States has standing to pole vault the circuit courts) -- and that makes the Court "Trump's enabler?" No, Linda wants the United States to be bound by an activist policy making district judge in California. That's "enabling" the erosion of rule of law.
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When these children were brought to this country they were minors and LEGALLY subject to obey their parents. This is the point: casting them out of the only country they know is making them pay for the sins of their parents. Not only is it cruel and inhumane, it will once and for all destroy any remaining idea of the US as the land of the "brave and the free."
9
So "activist" judges are "enabling" the erosion of rule of law? What do you call the process via which Gorsuch now squats on the SCOTUS? Ivanka peddling her wares in China? Kushner with access to all our secrets without a security clearance? I could go on.
4
Does that mean that you would agree to deport the parents and siblings who aren't DACAs?
Earlier while visiting Kristof's column, I wondered again about the role of The Supreme Court. With appreciation to Linda Greenhouse for this clarification, and preparing if necessary, to take a young Dreamer into this small house. She would be lonely and homesick, but there are a lot of children with parents in possession of a strong household that I would be able to reach out to.
It is within the realm of possibilities, and although unexpected late in life, there are plenty of good caring people to be found. Age would be a debilitating factor in this case, but remembering a friend of mine, now in Jerusalem when he was a child. A farmer's family hid him behind their house for his safety. He was to stand up straight for the first time at six.
It was Liberation Day in Germany when he saw soldiers coming to the rescue, followed by other assistance, and he grew up to be a Universal Citizen helping children on a global-basis.
UNICEF writes "Protecting migrant and refugee children is much more complex than simply offering safety. Responding to hundreds of crises every year, this 'non-political Agency' is active before, during and after emergencies - helping governments reduce risks before they strike...building back communities that will be more resilient and better prepared for the Future, while America shudders, with signs of becoming one of the most brutal Democratic Nations on Earth in the times we live, under the thumb of a weak President and his Government.
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