Supreme Court Rules 5-4 Against Trump Administration Of DACA Rescission

SCOTUSIn a 5-4 ruling, the Supreme Court had blocked the Trump Administration from ending the Deferred Action for Childhood Arrivals (DACA) program as an “arbitrary and capricious” change.  Chief Justice John Roberts, joined by the four liberal judges, ruled that Trump’s decision violated the Administrative Procedure Act. It was another self-inflicted wound due to a poorly executed policy change in this area.  The ruling is based on procedural failures, not the merits or the underlying authority.

Chief Justice John Roberts was joined by Justices Ruth Bader Ginsburg, Elena Kagan, Stephen Breyer and Sonia Sotomayor.  The majority ruled that

“the agency failed to consider the conspicuous issues of whether to retain forbearance and what if anything to do about the hardship to DACA recipients. That dual failure raises doubts about whether the agency appreciated the scope of its discretion or exercised that discretion in a reasonable manner. The appropriate recourse is therefore to remand to DHS so that it may consider the problem anew.”

In dissent, Justice Clarence Thomas, joined Justices Samuel Alito and Neil Gorsuch, wrote that any such errors were irrelevant because the underlying policy was facially unlawful”

“Under the auspices of today’s decision, administrations can bind their successors by unlawfully adopting significant legal changes through Executive Branch agency memoranda,. Even if the agency lacked authority to effectuate the changes, the changes cannot be undone by the same agency in a successor administration un- less the successor provides sufficient policy justifications to the satisfaction of this Court. In other words, the majority erroneously holds that the agency is not only permitted, but required, to continue administering unlawful programs that it inherited from a previous administration.”

What I find the most interesting is PART IV where Roberts was supported by only three justices (with the omission of Justice Sotomayor). That section rejected the use of President Trump’s public statements as proof of racial animus.  The language rejects such reliance by lower courts, particularly the Ninth Circuit.

None of these points, either singly or in concert, establishes a plausible equal protection claim. First, because Latinos make up a large share of the unauthorized alien population, one would expect them to make up an outsized share of recipients of any cross-cutting immigration relief program. … Were this fact sufficient to state a claim, virtually any generally applicable immigration policy could be challenged on equal protection grounds.

Second, there is nothing irregular about the history leading up to the September 2017 rescission. The lower courts concluded that “DACA received reaffirmation by [DHS] as recently as three months before the rescission,” 908 F. 3d, at 519 (quoting 298 F. Supp. 3d, at 1315), referring to the June 2017 DAPA rescission memo, which stated that DACA would “remain in effect,” App. 870. But this reasoning confuses abstention with reaffirmation. The DAPA memo did not address the merits of the DACA policy or its legality. Thus, when the Attorney General later determined that DACA shared DAPA’s legal defects, DHS’s decision to reevaluate DACA was not a “strange about-face.” 908 F. 3d, at 519. It was a natural response to a newly identified problem.

Finally, the cited statements are unilluminating. The relevant actors were most directly Acting Secretary Duke and the Attorney General. As the Batalla Vidal court acknowledged, respondents did not “identif[y] statements by [either] that would give rise to an inference of discriminatory motive.” 291 F. Supp. 3d, at 278. Instead, respondents contend that President Trump made critical statements about Latinos that evince discriminatory intent. But, even as interpreted by respondents, these statements—remote in time and made in unrelated contexts— do not qualify as “contemporary statements” probative of the decision at issue. Arlington Heights, 429 U. S., at 268. Thus, like respondents’ other points, the statements fail to raise a plausible inference that the rescission was motivated by animus.

The decision is already being misrepresented as a ruling on the merits or a rejection of the underlying claims of illegality. It is not.

 

Here is the opinion: Department of Homeland Security v. Regents of the University of California

404 thoughts on “Supreme Court Rules 5-4 Against Trump Administration Of DACA Rescission”

  1. bythebook — How do you know that humans have a level of self-awareness and reflection superior to that of the baleen whale species? Those have much bigger brains. Ever listened to their songs?

    More dramatically, send some time with African grey parrots.

    1. I don’t David, though I am guessing that by virtue of our communicated culture which know includes the recorded wisdom – and idiocy – of several thousand years which we happen to carry around in our pockets, if not superior intelligence, our self awareness is on an entirely different level. I could be persuaded otherwise with evidence.

    2. If you wish to beleive that whales are superior to the creatures who put men on the moon – that is your perogative.

      But this line of discussion is about the moral foundations of government and law.

      Are you telling me that whales have rights, and are subject to the duties and obligations of law and government ?

      If not you are far off on a tangent.

      1. John, whales are superior in their environment. It is true we could blow them all to smithereens if wanted to, but I’m not sure if that makes us world champions.

        As a humanist, I am by definition a specieist, and I think that is the natural position for a member of any animal species. I don’t intend to justify it, or on the other hand, denigrate humans as right wing fundamentalists, some left wing environmentalists, and disappointed idealists and romantics do. We are incredibly successful, smart, adaptable, and paint pretty pictures, write beautiful poems, and play funky music too. We are imperial and sublime and well worth saving. Other species ain’t so bad either and we continue to learn complex and impressive behaviors and abilities many possess. But we are a part of them, animals to the core, and not some separate “higher” beings.

        1. “John, whales are superior in their environment. It is true we could blow them all to smithereens if wanted to, but I’m not sure if that makes us world champions.” No, but it would make us superior.

          Mire important, there is pretty much no environment that humans have not dominated.
          No other species has done so.

          Have whales gone to the moon ? to the top of Everest ? to the bottom of the Marianas trench ? to both poles ?

          “As a humanist, I am by definition a specieist, and I think that is the natural position for a member of any animal species. I don’t intend to justify it, or on the other hand, denigrate humans as right wing fundamentalists, some left wing environmentalists, and disappointed idealists and romantics do. We are incredibly successful, smart, adaptable, and paint pretty pictures, write beautiful poems, and play funky music too. We are imperial and sublime and well worth saving. Other species ain’t so bad either and we continue to learn complex and impressive behaviors and abilities many possess. But we are a part of them, animals to the core, and not some separate “higher” beings.”

          You are very good at writing lots of words without saying anything of consequence.

          1. John, no doubt some of us are the only ones keeping score so you are right, though how do you score and what do we win?

            Having John accuse you of “writing lots of words” is a real achievement. I can’t comment on whether he says “anything of consequence”, because who reads them all.

            1. Where did you rant on “keeping score” come from ?

              Winning is a freer and more prosperous country – and those as intimately related.

              “Having John accuse you of “writing lots of words” is a real achievement.”

              Perfect example of the media’s lies.

              I said
              “You are very good at writing lots of words without saying anything of consequence.”
              That is radically different from your excerpt.

              “I can’t comment on whether he says “anything of consequence”, because who reads them all.”
              You should be able to tell if you have said anything of consequence.

              Clue: you have not.

              Still waiting for any principle that will allow people to determine when you think the use of force or govenrment is moral ?

              Why should anyone give you any power at all if you can not answer that simple question ?

              1. A freer and more prosperous country than …. the….. whales? Say what?

                And that’s the intelligible part.

                1. “A freer and more prosperous country than …. the….. whales? Say what?

                  And that’s the intelligible part.”

                  What you think that is an intelligable comment ?

                  If your going to jump topic, make broad generalizations, leave the thread, and make ambiguous remarks without context – do not blame me for following you.

  2. John Say — This grows tedious.

    I once had a course from
    https://en.m.wikipedia.org/wiki/Roger_Wolcott_Sperry
    on psycobiology and have kept up an interest in neuroscience. What is interesting about birds is that they are descended from some of the avian dinosaurs, so a very difficult development history from mammals. Yet some birds exhibit an obvious convergence upon what we recognize as intelligence. Anyway, some do.

    Now I assert that humans freely decide when to rest or otherwise. Ain’t instinct and whatever that means, ain’t instinct for birds either.

    Stating that some decision is algorithmic is a form of tautology; all decisions can be explicated by algorithms by throwing in nondeterminism.

    Yet you freely decide when to eat; so does a bird. I suppose that one could insist that this is just the result of the internal computation of the organism. That’s also correct, but seems quite unhelpful in explaining humans, birds, or even the activity of a large control computer.

    1. David Benson is the God Emperor of Making Stuff Up and owes me forty-five citations (one from the OED, one from the town ordinances and two from the Old Testament), an equation and the source of a quotation, and his mental health professional certificate after eighty weeks, and needs to cite all his work from now on. and is suffering from cementia – nice call to authority there. However, did you learn anything in the class and how long ago did you take the class. Back in ancient times I worked on four plays with the Royal Shakespeare Company. That does make me a graduate of the RSC or even an associate. It is just a fun memory. 😉

    2. I’m trying to discern the kernel of the disagreement here, though guessing John thinks humans are unique with regard to “free will”. Clearly we have a level of self awareness and reflection that is unique, and informed by the culture we all now are carriers of, but in the area of actionable behavior, thinking we are unique among animals is not obvious an would require proof.

      1. “I’m trying to discern the kernel of the disagreement here, though guessing John thinks humans are unique with regard to “free will”. ”

        I do but that is irrelevant.

        My point is that morality does not exist without free will, that is a tautology.

        If you believe that other animals have free will, then they are subject to the law, they have the same duties as humans and they have the same rights as humans.

        Regardless there is not really a disagreement, so mush as a complete unwillingness on your part to provide any basis for morality.

        I have done so.
        I have offered the non aggression principle or Kant’s catagorical imperative, which are generally regarded is nearly the same thing.
        There is also a confuscian version of the “golden rule” that is expressed negatively rather than positively – and therefore creates no duties. Those are all the same.

        Honestly I do not care if you wish to offer the golden rule as your moral foundation. BUT because the golden rule creates positive duties it can not function as the foundation for law or government.

    3. “John Say — This grows tedious.”

      Yes. Because you are being tedious. You keep seeking to prove that a qualified gneralization was absolute.
      And that inconsequential exceptions alter the significance.

      “I once had a course from
      https://en.m.wikipedia.org/wiki/Roger_Wolcott_Sperry
      on psycobiology and have kept up an interest in neuroscience.”

      So what ? I do not agree that the mirror test proves self awareness, but lets assume it does. It demonstrates an incredibly low level.

      “What is interesting about birds is that they are descended from some of the avian dinosaurs, so a very difficult development history from mammals. Yet some birds exhibit an obvious convergence upon what we recognize as intelligence. Anyway, some do.”

      I do not disagree, but neither past dinosaurs nor modern birds are a challenge to the exceptionalism of humans.

      “Now I assert that humans freely decide when to rest or otherwise. Ain’t instinct and whatever that means, ain’t instinct for birds either.”
      You may assert whatever you please. You can play definitional games – as you are with “self awareness”.

      You can claim birds are self aware and have free will – and if we are obligated to use your definitions I can not prove you wrong.

      But all it requires is a grasp of reality to recognize that birds and humans are not close in capabilities.

      Birds have had 200m years to evolve into forms superior to man. They have not. They are not even close.

      “Stating that some decision is algorithmic is a form of tautology; all decisions can be explicated by algorithms by throwing in nondeterminism.”

      Nope. Most advanced animal behavior is heuristic.

      “Yet you freely decide when to eat; so does a bird. I suppose that one could insist that this is just the result of the internal computation of the organism. That’s also correct, but seems quite unhelpful in explaining humans, birds, or even the activity of a large control computer.”

      Again you are playing games with meaning. I have no idea whether a bird “decides” whether to eat, and if so how that decision is made.
      I doubt that the real freedom necescary for free will is present in that “decision”. I doubt it is even a decision.
      Behavioral psychology has tried to demonstrate that human behavior is similarly automated to that of other animals. While providing much new knowledge. it has still failed at that task.

      Humans are unique. I do not know why they are unique. I can make guesses, but the why does not matter, it is still a fact.
      It is entirely possible that other animals might someday evolve to match or exceed humans. But they have not. They are not even close.
      Many other animals are superior to humans in a variety or ways. But that superiority has not “freed their minds”.

      Not even close.

      Yes, this is tedious – because you insist on playing words games rather than thinking.

      I am not playing. Define self awareness, and free choice however you want – there are several orders of magnitude of development of those faculties between humans and any other creature on this planet and no evidence that any creature is ever going to bridge it.

      The entire concept of morality exists only as a consequence of the unique free will that humans enjoy.
      No one sane would pretend that any other animal is close.

      But even that does not fundamentally matter.

      While humans are unarguably unique. My expectation that BTB provide a principled basis for morality remains the same even if we invite birds into the moral sphere.

      So you are being tedious about a tangent on which you are either completely wrong at worst or at best can show the most rudimentary levels of self awareness and fee choice that have not advanced in 200m years. During which time the rough equivalent of mice have evolved into humans.

      And finally free choice is not free will. It is necescary for free will but not sufficient.

      1. Been there, done that John. Waiting for your explanation of how and what defines morality and ethics. Please make it so I can find the explanation in your word goulash.

        1. “Been there, done that John. Waiting for your explanation of how and what defines morality and ethics. Please make it so I can find the explanation in your word goulash.”

          I have done that.

          Further. I am not seeking to upend the world. You are.
          I am not seeking to change government morality fundimentally – you are.

          I am not seeking to impose my will on others by force through government – you are.

          I need not explain myself – but you do.

    4. he’s done arguing with me about “legal positivism” and grown tired of comparing me to nazis which elicited a big yawn,
      so, now he’s on to fencing with you about “free will” which is because John Say believes you are guilty of the moral error of “determinism”
      then after that, the next charge on his Syllabus of Errors will be……..???? Let’s turn to the Ayn Rand playbook and see if we can guess.

      but wait, I’ll make a wild digression myself, let’s ask, is “free will” verifiable, or even subject to formation into a testable hypothesis?

      https://www.youtube.com/watch?v=0rd3TB_dIQo

      it’s painful when we find out that some of our deeply held cultural and religious norms– such as free will– are not easily reducible into testable hypthesis fit for scientific conformation.

      “consciousness” is even more difficult to define and evaluate according to “science”

  3. John Say — Sorry, but somewhere below you stated that birds are not self-aware. I know that to be false.

    Further, based on observing various species, insectivors, robins, …, up to hawks, I see the exhibit of free will. Each bird decides for itself to rest or hunt. Each bird decides for itself how close I can come. Etc.

    Anthropomorphic exceptionalism is readily carried too far.

    1. “John Say — Sorry, but somewhere below you stated that birds are not self-aware.”
      I provided what I wrote. “somewhere below” is not evidence of anything.
      Regardless you are paraphrasing what I said, and the paraphrase changes.

      If you are going to accuse someone you need to be more accurate.

      “I know that to be false.”
      I do not know what you know, nor care.
      When you are claiming my remarks are false – what you know or think you know is not evidence.

      “Further, based on observing various species, insectivors, robins, …, up to hawks, I see the exhibit of free will. Each bird decides for itself to rest or hunt. Each bird decides for itself how close I can come. Etc.”
      That is not free will. Separately you do not know that the birds are making a choice.
      What you know is that a choice exists and they are acting.
      You can not tell if their actions are instinctive, algorithmic, heuristic.
      Given that there are philosophers (and behavioral psychologists) who do not think humans have free will,
      you are not getting far on birds.

      “Anthropomorphic exceptionalism is readily carried too far.”
      Nope, Chimps are one of our closest relatives. They are still far from human. They have been around more than 10m years.
      yet even Chimps share more in terms of capabilities with birds than humans.

      Homo Sapiens has been arround for 150K years in that time they have developed an amazing repertoire of tools, transformed the earth, created numerous written and oral languages, Developed physics, mathematics, philosophy, created art compose music.

      And the majority of that has occured in the past 10K years.

    2. i had plenty of dogs and they are plenty self aware. I don’t know why people think animals are not self aware. except maybe they haven’t spent much time with them

      I don”t draw too much from this– i have no problem eating cow meat, even though, I suppose they are plenty self aware too

      1. “i had plenty of dogs and they are plenty self aware. I don’t know why people think animals are not self aware. except maybe they haven’t spent much time with them

        I don”t draw too much from this– i have no problem eating cow meat, even though, I suppose they are plenty self aware too”

        I really do not wish to play word games regarding animals. I do not beleive you or anyone else here honestly belives that animals have free will. Whatever “self awareness” you attribute to your dog, I doubt you think it is the same as that you do to yourself.
        Whatever free choice you think your dog is capable of – it is not near what you beleive you are.

        I am not interested in semantic games.

        If you honestly beleive that any other creature that we know of is even close to humans such that they can be said to have free will, and are therefore subject tot he same moral constrainst as humans – speak up. And you will probably have to quit eating meat.

  4. John Say — Earlier you stated that birds do not exhibit self-awareness. The Wikipedia article demonstrates otherwise.

    Also, you stated that only one species of birds is tool-using. That is also demonstrably wrong, as well as irrelevant to avian self-awareness.

    1. I quoted what I said – you deliberately misrepresented it.

      When I state something in a form that allows no exceptions. You can claim that an exception disproves the statement.

      Otherwise a generalization is not error, a scoped statement of knowledge is not error, just because there are exceptions.

    1. Maggpies are not parrots.
      Mirror self recognition is a very low standard.
      AGAIN I did not say that no other animals are self aware in anyform.
      I said few are, and far from the extent of humans – VERY FAR.

      Dogs are not the smartest mammals. not even close.
      But based on studies I am aware of they are the only animals that can find a hidden object be reading the eyes of a human – i.e. searching where the person looked.

      Human babies can not do this – but they learn fast.

      My argument is about Free Will – fairly advanced self awareness is necescary for free will.
      Only Humans have that.

      Morality requires free will and therefore is limited to humans

      Parrots that are able to form novel sentences and little more proves haw far humans are separated from other animals.
      and why morality does not apply to them.

      1. Ah hah!

        John, “free will” is an arguable and probably not resolvable issue. In it’s common usage it is a functional concept, but higher self awareness does not mean we can necessarily escape our past and current determinants for behavior. I prefer to act as though we can and the alternative would be crippling. However, claiming it as a unique characteristic of our species is self flattering without being proven. Why is this a critical element in your beliefs?

        By the way, our closest relatives are chimps. Do they have free will? Something like 1/3 of younger chimps who die before reaching adulthood are murdered by adult males seeking to increase their control of the group. Beyond being a reminder of where we came from and why we should be rightly proud of where we are, would this be an act of free will, or “instinct”?

        1. “John, “free will” is an arguable and probably not resolvable issue.”

          I can not prove free will exists.
          But that does not matter, because there are logical consequences to the existance/non existance of free will.

          Morality does not exist without free with.

          I have pointed out before that you can accept or reject free will – but that rejecting it has consequences.

          “Why is this a critical element in your beliefs?”
          It is not. You are just off on a tangent. If you desparately want to beleive that birds are self aware in the same way that humans are, have free choice in the way that humans are and have free will. I have no compelling need to thwart your beleif.

          But that would also mean they are subject to the same moral constraints as humans, and that humans were obligated to treat birds in the same way as other humans.

          “By the way, our closest relatives are chimps. Do they have free will? Something like 1/3 of younger chimps who die before reaching adulthood are murdered by adult males seeking to increase their control of the group. Beyond being a reminder of where we came from and why we should be rightly proud of where we are, would this be an act of free will, or “instinct”?”

          I do not need to answer your question – but you do ? Are chimps subject to the same moral constraints as humans ?

          Actual free will has consequences – one of those is that if you have free will you have moral responsibility for your actions.
          Do chimpanzees lock up murderous adults ? If not, either they have no free will, or chimpanzees are inherently immoral.

          Regardless you are making my point. If Chimps have free will, then the absence of principles has resulted in mass murder.
          Sounds like Hitler again.

          I would note that early humans behaved much like Chimpanzee’s. I do not know whether Homo Sapiens came into being with free will or if it evolved. But the understanding that free will creates morality took a long time to discern.

          It has taken use 150K years to get from your emotion based conception of morality to one with foundations in principle.

          And you want to take us back ?

        2. difficult to define “free will” and reduce it to a testable hypothesis. also “consciousness”

          it’s more useful to grapple with the simplest and most thresh-hold step of science– forming a valid, testable hypothesis– than argue about it vaguely
          that’s my opinion now.

          https://www.youtube.com/watch?v=0rd3TB_dIQo

          of course we have to treat other humans AS IF they have free will even if we doubt that it may exist or not.

          Physics seems to suggest that there is no free will, and fundamentally, we are all molecular machines, following some laws of nature, like machines, with a dose of entropy at every level to mix things up.

          If so it may not really matter too much. I fail to see how the old moral notion of “free will” is can be dispensed with. I think, it can’t be, particularly in crime and punishment. And I don’t look to physicists for advice on how to structure effective penal codes. that’s for sure.

          Where the subjects will meet, one day, perhaps not too far off, is when you have a human level machine intelligence. Then, yes, then it will suddenly get very “interesting” so perhaps we had better tackle the question. I recommend Lex Fridman’s podcasts as fantastic introductions to these subjects.

          1. “difficult to define “free will” and reduce it to a testable hypothesis. also “consciousness””

            So ?

            Can you reduce the axiom than parallel lines do not intersect to something testable ?

            “of course we have to treat other humans AS IF they have free will even if we doubt that it may exist or not.”
            Works for me.
            BTW why do you have to do that ?

            “Physics seems to suggest that there is no free will, and fundamentally, we are all molecular machines, following some laws of nature, like machines, with a dose of entropy at every level to mix things up.”
            Free will and the possibility that we are molecular machines are not inherently contradictory.
            Prove that all machines are determinant ?

            “Where the subjects will meet, one day, perhaps not too far off, is when you have a human level machine intelligence.”

            Maybe, maybe not. AI is doing unbeleiveable things. Yet we are still infinitely far from anything resembling human thought.
            We really grasp very little about how humans think. We have some models, and those modeals are interesting and have been very usefull in AI, but ultimately they are incomplete – they are able to explain the movement of our arms, not our comprehension of art.

  5. John Say, that was muddled. Parrots do not communicate with other parrots using American English. Alex did with his keeper.

    I don’t care about your ‘argument’, whatever it might be, but I do care about people just Making Stuff Up about matters beyond their ken.

    1. “John Say, that was muddled.”

      Parrots do not communicate with other parrots using American English. Alex did with his keeper.
      Not necessarily self awareness. nor is novelty.

      “I don’t care about your ‘argument’, whatever it might be”
      Then why are you jumping in to claim a minor exception ?

      “but I do care about people just Making Stuff Up about matters beyond their ken.”
      Did not make things up. I said “I was only aware of one”.
      20 neither changes my argument nor would it be “making stuff up”

      of the inumererable species of birds, a handful of toll makers do not falsify anything I said.

      If you parrot is self aware – which I do not rule out – but you have not established.
      That does not actually falsify what I said.

      Below is my post that you are quibbling with.

      Absent misrepresenting my remarks as something more absolute than I made them – your allegations are wrong.

      You are making oblique claims about my credibility based on misrepresentations of what I actually said.

      If you are going to accuse me of falsehood – do so specifically and directly.

      Quite frequently I make absolute statements. This was not such an instance.
      I made a statement with succificent specificity to make my argument.

      It is possible that you are correct about the number of species of birds that may tools – but you are still misrepresenting what I said.
      And in doing so undermine your own credibility

      ————————
      You can assure me of whatever you want.
      I beleive we have found a single species of bird that makes tools.

      Honestly I do not care if birds have some minimal self awareness – though I am not accepting that because you say they do.

      Regardless, even the self awareness of most mammals is fundamentally different than that of humans.
      ——————————-

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