Update, June 20, 10:30 am:

T
wo two highly respected and capable
Washington Post reporters, Seung Min Kim and Robert Barnes. have published an article to the effect that Chief Justice Roberts' DACA opinion was mainly based on legal technicalities, rather than substance. See their June 19 article:


Trump has no patience for legal intricacies. The Supreme Court is all about them

(Link omitted - please use Google to access.)

This is not the only comment that has appeared alleging that Chief Justice Roberts' was relying mainly on legal technicalities rather than substance in rejecting the president's attempt to overturn DACA. With all due respect to these distinguished reporters, whom I greatly admire, I believe that the conclusion that Chief Justice Roberts was relying mainly on legal technicalities rather than substance overlooks the real point of his opinion.

As I show below, even though it is certainly true that Chief Justice Roberts used a great deal of highly technical language and closely reasoned arguments in his opinion, his conclusion was far from being merely technical. To the contrary, in essence he pointed that the DACA recipients would have been severely impacted by the Trump administrations sudden change of course on DACA without adequate explanation or justification.

Specifically, as Roberts pointed out terminating DACA would have removed their protection against deportation (which Roberts referred as "forbearance"). Failure to consider or explain the effect of exposure to deportation pn the lives up to 800,000 people is not a legal "intricacy", and this decision was not made on pure;y technical grounds, To the contrary, despite Roberts' use of arcane and complex terminology, it expressly dealt with a major substantive issue. This is clear from the quoted parts of his opinion that I discuss below.


Donald Trump, who is not normally known for his legal sophistication, appears to have instinctively understood that Chief Justice Roberts was not dealing primarily with technical legal issues, but with a matter of great substantive importance.T

This is the issue of how Trump's entire immigration agenda- going beyond the question of DACA deportations - hardly a narrow or technical one - is aimed at excluding immigrants who don't happen to come from his preferred "Countries Like Norway". This is why Trump reacted so furiously against the Chief Justice's decision. He realized that Chief Justice Roberts was on to the larger issues, far beyond whether there was a technical violation of an APA requirement.


My earlier comment follows:

In the wake of the historic June 18 5-4 Supreme Court decision rejection the Trump administration's attempt to end DACA as defective under the Administrative Procedure Act, there has been a rush of comments to the effect that the decision was based on narrow, technical grounds only, and that DACA recipients should not take too much encouragement from Justice John Robert's majority opinion - which was joined by the four liberal Justices. It is true that Chief Justice Roberts' opinion was full of technical language and arguments/ But kid conclusion was broad - namely that there was something very fundamentally wrong about Trump's decision to end DACA.

As an example of a comment that got caught up in the admittedly technical language of the introduction to Chief Justice Roberts' opinion while completely missing the main point, see VOX, June 18:


The Supreme Court Saved DACA because of a paperwork error by the Trump administration

https://www.vox.com/2020/6/18/supreme-court-daca-trump-roberts-regents-university-california-homeland-security

I will not go into the details of the technical portion of the opinion here. The conclusion, however was plain: While there was no dispute that the Trump administration has the authority to terminate DACA, the APA required the DHS to provide a sufficient explanation of its reasons for doing so. In this case,, Justice Roberts wrote, the explanation was insufficient.

The above comment, and other similar ones seized on this conclusion to argue that Roberts was only telling the administration to rewrite its explanation and then - presto- DACA is gone. But if one reads the decision more carefully, it become apparent that Roberts was asking the Trump administration to rewrite its explanation in a way that is virtually impossible for this administration to do.

In essence Chief,Justice Roberts wrote that the Trump administration's DHS had failed to discuss or explain the effect that cancelling DACA's protection against deportation would have on the 800,000 affected DACA recipients. In the heart of his decision (on page 23) Roberts states:

"But the recission memorandum no discussion of forbearance [i.e. protections against deportation] or the option of retaining forbearance without benefits. Duke 'entirely failed to consider [that] important aspect of the problem' [Citation omitted.

That omission [to explain the reasons for cancelling protection form deportation] alone renders Acting [DHS] Secretary Duke's decision arbitrary and capricious. But it is not the only defect. Duke also failed to address whether there was 'legitimate reliance' on the DACA memorandum. [Citation omitted] When an agency changes course, as DHS did here, it must be cognizant that longstanding policies may have "engendered serious reliance interests that must be taken into account."'"


In other words, Roberts is saying that DHS was required to, but failed to consider, the devastating effect that removing protection against deportation would have on the hundreds of thousands of DACA recipients involved. Obviously, this omission by DHS was not accidental. There is no way that the DHS could have discussed or explained this issue in a way that would have justified a decision with such potentially catastrophic consequences on the lives of so many immigrants.

Moreover Roberts could hardly have been blind to the overall racism behind Trump's entire immigration agenda in a time when America ha been convulsed by protests against systemic racism of all types. The reality is that, in attempting to cancel DACA, Trump intended this decision to have devastating consequence for nearly a million young people who were relying on DACA's protections against deportation.

This explains why Trump reacted so furiously against the Court's decision, taking it a personal attack in classic dictator's style. In a tweet, he called it a "horrible" decision and "shotgun blasts in the face" of Republicans and Conservatives. In a possible threat to try to pack the Court, he also said: "We need more justices."

https://www.nytimes.com/2020/06/18/supreme-court-rejects-trumps-daca-decision

This was not exactly the reaction of a president who respects judicial independence, separation of powers and the rule of law. The next question, which may come up very soon if Trump moves ahead with reported plans to declare war on H-1B and other skilled worker nonimmigrant visa categories, is whether the Court will also force Trump to play by the rules of our democracy by respecting the human rights pf legal immigrants, rather than rewriting our immigration laws by executive decree in order to take our immigration system back to the white supremacist regime of the 1924-1964 period.

Roger Algase
Attorney at Law
Harvard Law School LL.B
Harvard College A.B.