Law & the Courts

The Supreme Court Gives Amnesty to Illegal Regulations

(Bill Chizek/Getty Images)

For the second time in a week, the Supreme Court has allowed liberals to enact one of their longstanding legislative priorities without the consent of Congress or the president. Conservatives could be forgiven for wondering why liberals need win only one election — or none — to have their choices made permanent, while President Trump’s voters could not even accomplish the modest goal of seeing the executive branch stop acting illegally to protect people who broke the law.

At issue this time was President Obama’s Deferred Action for Childhood Arrivals (DACA) policy, which let illegal-immigrant “Dreamers” stay in the country and receive federal benefits if they had been brought here as children by their parents. The DREAM Act was introduced in 2001, extensively debated during the 2006 and 2013 immigration fights on Capitol Hill, and voted on in 2007 and 2010. While reasonable minds may differ on the merits of that proposal, nobody disputes that this is an important public-policy question on which Congress has the power to legislate. When Congress did not deliver the answer Obama liked, he used his “pen and phone” to make DACA the law of the land by executive fiat. The Court’s decision rejected Obama’s legal arguments for having that power, yet it told the Trump administration that it needed better reasons to repeal DACA than the fact that it breaks the law.

Justice Thomas got it right in his dissent: In a nation of laws, no federal agency should ever need more reason to pull an unlawful regulation up by the roots. The Court’s flimsy rationales — that the Department of Homeland Security should have addressed whether people relied on DACA and whether there were alternatives to complete repeal of DACA — might be a fair critique on a job evaluation of DHS staffers, but they are no basis for ordering the president to enforce a policy that exceeds the president’s legal power. Meanwhile, thanks to a nationwide injunction, the “resistance” has managed to run out the clock for nearly four years.

The Court’s opinion does offer a few glimmers of hope and sanity. The Court soundly rejected the argument that repealing DACA violates the Constitution. It allowed the administration room to go back and repeal DACA again, if it can explain its reasons better before Trump’s first term runs out. And there are still challenges to DACA working their way through the lower courts, which will likely be strengthened by the Court’s reasoning. The Court is also not the only actor to blame here: Congress’ squabbling, Obama’s flagrant lawbreaking, Trump’s reckless rhetoric, and the administrative sloppiness of DHS all brought us to this point.

The rule of law, however, is not just a legal theory: It survives only when the various actors in our system treat it as valuable. Future administrations will, as Justice Thomas warns, treat this case as a roadmap for entrenching unlawful power grabs. An illegal regulation survives on the books simply by delay in the courts; congressional inaction becomes an excuse to make law elsewhere; and elite preferences in media, academia, large nonprofits, corporate America, and Hollywood prove immune to election results so long as judges can nitpick the decisions of elected officials. Whatever this is, it is not the rule of law made by the people’s representatives.


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