DACA recipients and their supporters rally outside the Supreme Court, which denied the Trump administration’s attempt to end the Deferred Action for Childhood Arrivals program. Drew Angerer/Getty Images For the second time in a week, the Supreme Court came down on the side of justice!
Is it wrong for me to be happy this is only 74 pdf pages long? Department of Homeland Security v. Regents of the University of California came out on June 18th, and I’ve been so swamped with Supreme Court news – and general surprise – that I haven’t done my new-tradition of reading and annotating as I go.
This one is tricky for me, because the Administrative Procedures Act is its own WORLD. I try not to know too much about this. But it can’t be helped, really.
Okay, the main summary is this:
The gist, from page 14 of the main opinion.
That’s the most important point: the Deferred Actions for Childhood Arrivals program can be shut down; it just has to be done so according to LAWS AND RULES AND ADMINISTRATIVE PROCEDURES.
The Court says the government canceled DACA in an “arbitrary and capricious” manner.
OPINION BY ROBERTS: the government characterizes the DACA program as a discretionary agency decision not to institute deportation proceedings, which can’t be reviewed under current law. The Court disagrees, saying it the program’s scope far exceeds that AND includes benefits which are normal for the Court to review. The same goes for the gov’t INA claims, which are also about removals: DACA isn’t just about removals, so no dice. (pages of the court website PDF p 6- 18)
The government’s original explanation for why it wanted to rescind the policy is the natural one under administrative law, and [the Court gives a rousing defensive of administrative procedure so the public has a right to know and can comment.] The follow-on retro-justifications are irrelevant. (p18 – 22)
The AG said one part of the law was potentially illegal, and tried to throw it all out, forgetting the State Farm case (my summary: don’t throw the baby out with the bathwater), which said that an agency can’t use one problem justify dumping many discrete activities in a program, especially if there is legitimate reliance upon them. (through p. 34)
CONCURRENCE/CONCURRENCE/DISSENT by SOTOMAYOR: The Court ruled out Equal Protection Clause challenges, but the respondents should develop those. There IS plausible animus! Especially from Trump, and specifically in this context! (p. 35 – 38)
CONCURRENCE/DISSENT by THOMAS with ALITO AND GORSUCH: This whole policy exists because one president issued a memo; it was rescinded the same way; fair’s fair. Also, if the AG says it is illegal, we shouldn’t even be talking about it. Illegal memos should not burden subsequent administrations. (p. 39 – 64)
CONCURRENCE/DISSENT by ALITO: DACA is illegal; if its creation was legal, its cancellation through a similar process was lawful discretion and so is unreviewable anway. And it’s NOT arbitrary and capricious. (p. 65 – 66)
CONCURRENCE/DISSENT by KAVANAUGH: The agency’s second try at justifying rescinding DACA is fine. The fact that it came later was only supposed to disqualify it if it was in litigation (which this doesn’t count as?) by lawyers (ah), rather than by agency decision makers. The program inappropriately addresses problems that should have been solved by the legislature; but at least the rejection of the Equal Protection Act claim is OK. (p67 – 74)
So the DREAMers aren’t safe, but have some more time while this goes back through more courts. But that’s all it really is – a bit more time. Because of that main first point – live by the memo, die by the memo (plus administrative procedures – this case provides an unsettled feeling.
I’ve had friends tell me it took a ton of money and more than a decade for them to be allowed to be citizens, even with one American parent; we could do better by people who want to be here.
Yes, I was that person who would post great quotes from Supreme Court decisions on my door at work when I worked at a law firm. Yes, especially if you have to write a lot of briefs, these decisions are INTERESTING to read.
This decision was an unexpectedly positive result for people who want women to have reproductive choice rather than forced births due to restrictions that do not improve healthcare, while pretending to be for women’s protection. This case was about whether the Court will follow other recent precedent for a NEARLY IDENTICAL law that was already deemed unconstitutional, what the role of the Supreme Court is and what matters were before it, who has standing to litigate abortion rights, and what happens next.
My notes from reading:
OPINION BY BREYER: this is just like Whole Women’s Health v. Hellerstedt, and so it’s unconstitutional. Undue burdens galore. Also, there were no errors by the District Courts on the facts, so we shouldn’t dwell on those, even though they’re really good here in showing that the admitting privilege law doesn’t benefit pregnant people. (pages 1 – 45 of the PDF of the decisions linked to above)
CONCURRENCE BY ROBERTS: I didn’t agree with Whole Women’s, but it is a precedent, this law is nearly identical, and so we must follow Whole Women’s. Substantial obstacles are unconstitutional. However, here is a master class on all the abortion restrictions that were good, and cases should really be more like those. (pages 46 – 61)
DISSENT BY THOMAS: These plaintiffs don’t have standing. (Footnote, we should be this nice about standing for guns. Waiting for Godot joke here.) “Our abortion precedents are grievously wrong and should be overruled.” Things have been bad throughout the 20th century, and we should really consider what people intended in the 1860s – these are not part of the “inheritance from our forefathers.” (Not a typo! 1860s!) (pages 62 – 81)
DISSENT BY ALITO: But the law PROTECTS women! No, really! Notwithstanding all of the District Court’s finding of facts to the contrary, they do! Also, no one proved that a law that was bad for one state is bad for another. And these doctors did not try hard enough, notwithstanding all of the findings of fact of the obstacles they encountered while the District Court watched, including documented hospital policies explicitly saying they can’t have admitting privilege if they do the only they do for a living. Also, they have no standing, because they don’t have a close relationship with their patients. (pages 82-115 and all agonizing to read)
DISSENT BY GORSUCH: The law protects women, notwithstanding the findings of fact, and we should defer to the legislature. Also: no standing (no close relationship). Also, we focus too much on people (a “substantial number” or “large fraction”) who are unreasonably burdened, when some women won’t be! And maybe everything will change, and maybe the hospitals will spontaneously develop new policies, and maybe there will be new clinics popping up just because – what about that speculative possibility? Doesn’t the market fix everything? (pages 116 – 136)
DISSENT BY KAVANAUGH: We need more facts before we can decide on this law. I have doubts about those admission privilege efforts the doctors made. (pages 137 – 138)
I have some favorite parts of Breyer’s opinion.
-Zing (page 29)-Speculative inferences! Facts not in evidence! WOW! ZING AGAIN! (page 30)
Here is the Rewire News half-hour reaction podcast, which I love for the combination of legal nerdery plus celebratory profanity:
A crowd rallies outside the Supreme Court during the arguments for June Medical Services v. Russo. Photo by Eric Kruszewski U.S. Supreme Court Justice Stephen Breyer has done it again! BREAKING NEWS: Supreme Court just confirmed what we all knew: Louisiana’s anti-abortion law is UNCONSTITUTIONAL.
My favorite thing from this Independence Day is this vibrant, positive declaration reclaiming the United States for all of us from Jameelah Nuriddin and Erin Hammond.
With the explosion of global protests and activism demanding an end to racial inequality, Jameelah Nuriddin and Erin Hammond consider the complicated relationship between African Americans and the American flag in a series of photos. The eight images capture a giant 200-year-old flag, a young black woman with a giant afro, and various postures combining the pledge of allegiance and black power poses.
… Envision a world where all humans are free and equal – where we prize each other over material things – we stand against tyranny and oppression, hatred and fear
I just watched the great documentary about civil rights icon John Lewis, and half of my ticket goes to my local movie theater, The Roxie.
It is remarkable to know how much work and self-sacrifice effective mass movements require, and how deeply impressive it is that heroes and heroines dedicate so much of their lives so directly to making things better for all of us.
Using interviews and rare archival footage, JOHN LEWIS: GOOD TROUBLE chronicles Lewis’ 60-plus years of social activism and legislative action on civil rights, voting rights, gun control, health-care reform and immigration.
With so many of our streets largely deserted by cars, and people desperate for some fresh air, why not give the streets back to HUMANS?
That’s the idea behind Slow Streets, which also helps local businesses by providing space for customers to wait outside their businesses in safely spaced lines, while other people can safely walk through the area. It is a clever adaptation, and a good one to see!
Tea in my favorite tea cup, which gets daily use now that I am always home
As you can tell by the prior posts, while my life (and the life of many people in my county/region) has changed significantly, yet not all of us are actually sticking to the plan to limit the spread of the pandemic.
Yes, the health orders are still in effect – here in SF, the active order explicitly says:
8. All travel, including, but not limited to, travel on foot, bicycle, scooter, motorcycle, automobile, or public transit, except Essential Travel, as defined below in Section 15.i, is prohibited…. This Order allows travel into or out of the County only to perform Essential Activities, Outdoor Activities, or Additional Activities; to operate, perform work for, or access a business allowed to operate under this Order; to perform Minimum Basic Operations at other businesses; or to maintain Essential Governmental Functions.
And there are similar health orders in effect in other counties, yet… people within my social circles within California are taking vacations.*face palm* As in: leaving their homes, going to another city/county/state, staying in hotels, eating out, socializing with travel companions who are not from their households, sitting in the sun on beaches even they describe as “packed,” etc. Because: they are adults who are slightly bored.
I’m so glad I’m not interacting with any of these people in person, dear though they may otherwise be – and luckily, they don’t live in MY county. But I’m disappointed in them. Yes, we are all restless. Yes, I’m daydreaming of glorious, sunny, breezy moments from past trips. (I stared adoringly at maps of Lugano, Switzerland, today, which came to mind because the Swiss have decided that Americans (and visitors from 28 other nations) are too risky to allow in as visitors right now. (See the last item in this summary from the UK Guardian.) Really, based on the lack of self-control of people I know, who would blame them?)Yes, I’d love for the pandemic to be over – we would ALL love that. BUT IT IS NOT OVER. In fact, it is getting WORSE, because Americans have the self-control of small children. (No offense intended to any small children WITH self-control out there.)
I’m blaming those few, reckless people I know for the delay of museum re-openings, hair salons, and other services that could have gotten more of us living something closer to normal life, with more people CAUTIOUSLY working again.
~~~
The “New Normal” is more established now. I no longer receive mail about upcoming museum shows, library lecture series, bookshop author signing events, or public festivals: those colorful, festive newsletters have been replaced with small, polite-but-desperate pleas from local non-profits about our uncertain future, and how every activity they would ordinarily do to raise operational money cannot be done safely.
Many stores are closed permanently. Signs are down, and windows are papered over or covered in plywood. I’ve received numerous goodbye emails from those that were only open for office worker lunch shifts. My friend at a beloved local coffee chain let me know that many of our mutual friends are now seeking work.
Food delivery app-backed services are now (finally) viewed skeptically, as their business model of taking 35% or more of each sale while somehow also underpaying their delivery workers is recognized as exploitative of both restaurants AND delivery personnel.
To escape from that exploitation, restaurants near me are now running their own on-line ordering & delivery. This means some of them won’t deliver to me at all (they chose to service smaller delivery areas), foiling my earlier, successful attempts to support local restaurants. The few that do deliver to me still require full contact delivery (they want a human to touch their pen to sign a paper copy of an on-line receipt for a transaction that has already been paid (!) OR want tips handled as in-person cash transactions).
Companies that CAN support working remotely but never did before suddenly realize that people DO WORK while remote. This is transformative (I’m hoping this could be great for the physically disabled, who were not adequately accommodated in the past), and permanent remote work arrangements are being cemented at some large, digital-economy-centric corporations. The ripple effects of that alone are huge.
I continue to stay inside.
I am resolving my supply logistics. I have a stockpile of gluten-free, vegan dried proteins to tide me over if my deliveries are interrupted again. I subscribe to a local, weekly, produce-waste-prevention service, which gives me a crate of hardy fruits + veggies that can’t be sold in supermarkets due to size or color standards. My local gluten-free-sourdough bakery order will come through once the bakery completes their COVID-19 deep-cleaning and implements additional safety measures (hopefully the employee who tested positive will recovery quickly!). I am using local suppliers (for tea, olive oil, spices, grains) that can ship to my home.
My diet has changed in unplanned ways based on what I can/can’t get, which has caused me some problems (I have heartburn for the first time in 14 or 15 YEARS), and I’m trying to get a handle on that WHILE ALSO doing things like making sauerkraut or pickling beets for the first time, and making the most of what I have.
I appreciate that I have food, that my housing is stable, that my COVID-19 screening test yesterday came up clear, that I have a job, that my loved ones are reasonably healthy, that I have medical insurance. I am not going to risk the lives of others and stamp my feet over an inability to take fancy vacations to relieve some unstated existential crises or gaps in Instagram lifestyle posts. I AM going to continue to be concerned that so many Americans aren’t good at what the kids call “adulting.”
I sometimes think I expect too much. I’m reading McSweeney’s 54: The End of Trust, and thinking of my early (early 1990s) ideals around the Internet and personal computing, which were both evolving so rapidly.
Confession: I thought that everyone I knew would be doing AMAZING THINGS with this technology, especially once software and hardware evolved for key activities like music composition, video editing, digital painting, and more. I was certain that everyone I knew had a hidden composer/filmmaker/author/artist in them just WAITING to get out.
But… it’s 2020, and most people I know use this truly amazing content creation/sharing infrastructure to: post photos of their (purchased meals), post photos of themself drunk, make their children self-conscious by “sharenting” (oversharing as parents), repost unreliable information found on unreliable source pages of dubious origin, or watch (and repost) cat videos.
*me staring at the reader with alarmed expression*
Yes, there is some nice citizen science stuff, and the libraries are doing a great job, but I EXPECTED that.
No, really, I didn’t expect [gestures toward the screen] this. I thought tech would revolutionize education and communication and film and science in ways that… HAVE NOT HAPPENED. I did not anticipate “social media” where people talk about themselves endlessly, and misrepresent how they look and live to their “friends.” I was not cynical enough to envision paid “influencers” peddling products. I would not have anticipated the web being used to hype imaginary events like the Fyre Festival. I did not think so many people had an inner scam compulsion and/or marketing ambition and/or cat obsession to resolve.
I… feel like such a wacky optimist.
ANYWAY, the End of Trust is really good, and I can tell because I am using up tape flags over things I want to dwell on further. It’s a great sign. I’ll write about it, of course.
I had intended to comment here on major milestones, but we are just flying through them so quickly now that recent “reopening” (which is more like “denial” or “pretending coronaviruses take time off” than it is “cautious and aware activities”) has had its incubation period run out.
Reading news on the phone is now called “doom scrolling,” to give you a sense of how poorly management of this virus has gone in my part of the world. (It’s possible to do better, and many countries have, but the US has chosen a different path.)
