I’m often asked these days whether there is anything the Supreme Court can do to extract itself from the partisan trap into which the rancid confirmation process and the court’s own behavior have driven it. It’s a hard question because, of course, individual justices have deeply held views that happen for the most part to map onto the views of the presidents who named them to their seats.
That wasn’t always the case — think Chief Justice Earl Warren, named by President Dwight Eisenhower, or Justice Harry Blackmun, appointed by President Richard Nixon. But it’s the case now, and it’s unrealistic to suppose that either the five conservative Republican-appointed justices or the four moderates named by Democrats would — or even should — put their basic beliefs about the Constitution or the interpretation of statutes on the shelf in an effort to persuade the public that the court is not just another political institution.
But the recently argued case involving young undocumented immigrants known as Dreamers and the pending effort by President Trump to quash subpoenas seeking his tax information from his personal accountants suggest that there is something the court can do. These are extraordinary cases, to be sure, but they easily — even obviously — lend themselves to resolution by ordinary rules.
And that would be the point: business as usual, no matter who’s in the White House. Although President Trump and his attorney general, William Barr, have excoriated lower-court judges as agents of “the resistance,” in fact it’s the judges who have been following the rules and the administration that behaves as if the rules apply only to everyone else.
The case involving the Deferred Action for Childhood Arrivals program, or DACA, is a prime example. When the case, Department of Homeland Security v. Regents of the University of California, was argued last week, no one disputed that President Trump can rescind the deportation deferral that President Barack Obama granted to hundreds of thousands of undocumented young people who were brought to this country as children and who have made their lives here. The case is not about DACA’s legality or presidential discretion. It’s about rules: whether in rescinding DACA, the president adhered to the core principles of administrative law. Judges in four federal judicial districts found that he did not.
“Administrative law” may sound like a boring subject, but it isn’t. It’s both fascinating and, in the 73-year history of the Administrative Procedure Act, more important than ever for providing the legal structure in which encounters between citizens and their government take place. The Administrative Procedure Act doesn’t tell the government what to do. It simply requires that actions of federal agencies be supported by reasoned decision-making. When challenged, agencies have to provide explanations that are plausible and consistent rather than “arbitrary and capricious.”
It was on this basis that the administration’s effort to add a citizenship question to the 2020 census crashed and burned in June. The judges who blocked the plan, including Chief Justice John Roberts in his majority opinion, did not, as Attorney General Barr implied in a speech last week to the Federalist Society, “inquire into the subjective motivation behind governmental action.” In fact, they rather ostentatiously steered clear of speculating about motive, although the rest of us were free to see “vote suppression” written all over the plan. The judges simply put the administration’s stated reason (to aid the Justice Department’s enforcement of the Voting Rights Act) side by side with the facts (the request had not originated with the voting rights enforcers) and decided that the distance between the two was too great to meet the test of reasoned decision-making.
In similar albeit less consequential fashion, finding a lack of reasoned decision-making was behind a federal appeals court’s recent invalidation of a 5-cent increase in the price of a first-class stamp. I chose that case to write about in a recent column as a way of depicting administrative law in action, divorced from any political valence. The opinion for the unanimous three-judge panel of the federal appeals court in Washington was written by Judge Neomi Rao, a conservative administrative law specialist named by President Trump, and joined by an Obama-administration appointee, Judge Patricia Millett.
The president would almost certainly have gotten away with rescinding the DACA program if he and his lawyers had simply said, “We don’t like DACA, it’s inconsistent with our approach to immigration policy in the following ways, and we’re getting rid of it.” But the lawyers couldn’t say that because President Trump had promised “the Dreamers” at the start of his administration that they would have his continued support. So the explanation the lawyers offered was that they had to terminate the program because they had discovered that it was illegal.
Rejecting this conclusion as “conclusory” and “virtually unexplained,” Judge John Bates of the Federal District Court in Washington took an unusual step. Rather than issuing an immediate injunction to block the rescission, he gave the administration 90 days “to better explain its view that DACA is unlawful.” Instead, the administration came back with what amounted to a new explanation of a different kind: that DACA was sending the wrong message by seeming to endorse and invite illegal entry into the country.
Responding in a second opinion, Judge Bates said that to accept what he called the “messaging rationale” would violate a basic principle of administrative law, which requires judges to disregard after-the-fact explanations “for why the agency could have taken the action.” Quoting a precedent from the federal appeals court in Washington, Judge Bates said that an agency’s subsequent explanation “must be more than a barren exercise of supplying reasons to support a preordained result.”
What this means is not that the Trump administration is stuck with DACA until the end of its days. Rather, if the administration wants to offer policy-based reasons for terminating DACA, it has to explain its policy choice, including why the need to end the program outweighs the fact that some 700,000 DACA recipients have built their lives around their ability to remain in the United States. Judge Bates said that when an agency is terminating an existing policy, the Administrative Procedure Act requires a “more substantial justification” than usual if the “prior policy has engendered serious reliance interests.”
So that’s how the ordinary rules would work in the DACA case. It’s not particularly complicated, but the conservative justices appeared to be having a hard time with it when the case was argued last week. “It would take another six years,” Justice Neil Gorsuch, citing the administration’s argument, said in frustration to the DACA recipients’ lawyer, Theodore Olson. It surely wouldn’t take that long, but in any event, all the justices have to do to start the clock running is to affirm the lower court opinions.
When it comes to the president’s effort to shield his tax returns, the justices need to do even less than that.
Two appeals by the president, in his private capacity and represented by private lawyers, have reached the Supreme Court in the past week. One, Trump v. Vance, is a formal appeal from a ruling by the federal appeals court in New York upholding the validity of a grand jury subpoena obtained by the Manhattan district attorney, Cyrus Vance, and served on the president’s accountants for his personal and business tax records.
The appeals court’s decision was overtly narrow, deciding only the matter at hand rather than any broad question of presidential immunity that may arise as Mr. Vance pursues his investigation into hush money paid to two women just before the 2016 campaign. “Any presidential immunity from state criminal process does not extend to investigative steps like the grand jury subpoena at issue here,” Chief Judge Robert Katzmann wrote for the appeals court. Any further question, he added pointedly, “is purely hypothetical.”
The Trump lawyers’ Supreme Court petition, referring to Mr. Vance as “politically motivated,” “a lone county prosecutor,” instructs the court that “a sitting president should be categorically immune from state criminal process.” The subpoena “threatens the balance of power between the national and state governments,” the lawyers assert, adding that criminal prosecution would impose “a distinctive and serious stigma” on a sitting president. Someone who had not read Chief Judge Katzmann’s careful opinion might suppose that the case actually presents these issues. But the opinion is only 29 pages long, and the justices will surely read every word.
The other case, Trump v. Mazars USA, is not yet a formal appeal. The president’s private lawyers are asking the justices for a stay of a decision by the federal appeals court in Washington to enforce a similar subpoena issued to the same accountants by the House Committee on Oversight and Reform. A stay would give the lawyers time to file a formal petition; without it, the accountants have said they would comply with the subpoena. On Monday, Chief Justice Roberts put the appeals court’s decision on a brief hold and gave the House committee until Thursday to respond to the stay request.
Whether the Supreme Court ultimately grants review in these cases is purely discretionary. In their preliminary posture, and in the absence of conflicting opinions from other courts, the cases don’t satisfy the justices’ ordinary, if loosely defined, criteria for cases worthy of their attention. The president’s lawyers appear to recognize this, compensating with their hyperbolic language about the dire consequences to the presidency and the country if the subpoenas are enforced.
I remember similar arguments in the Paula Jones case, when President Bill Clinton’s lawyers went to the Supreme Court with the claim that a sitting president should not be subject to a lawsuit. Mr. Clinton lost that argument by a vote of 9 to 0. What should the court do with the Trump tax cases? If the justices play by their ordinary rules, they will turn them down. (Whether to grant a stay is a different matter, of little consequence in the scheme of things.)
In fact, I’ll predict here that contrary to the expectations of many people who foresee a big Supreme Court showdown over presidential power, that’s what the court will do. Certainly Chief Justice Roberts wants nothing to do with these cases. He knows that he is highly likely to be presiding over a Senate impeachment trial early in the new year, at the same time the court would be scheduling the cases for argument. Would he have to recuse himself? He might well choose to, raising the possibility of a 4-to-4 tie, which would affirm the lower court decisions and accomplish nothing beyond leaving the court out on a limb it never needed to climb.
DACA supporters have criticized the administration’s position that “the law is making us do it” on the ground that the administration is seeking to evade responsibility for a decision that while perhaps popular with the president’s base, is likely to be unpopular with the country as a whole once mass deportations of DACA recipients begin. During last week’s argument, Justice Ruth Bader Ginsburg reflected that sentiment. In a colloquy with Solicitor General Noel Francisco, she suggested that the administration had run out of options for avoiding ownership of the DACA rescission and that it now needed to say, “‘We don’t like DACA and we’re taking responsibility for that,’ instead of trying to put the blame on the law.”
Mr. Francisco seemed to find the inference unfair. “I very much disagree,” he said. “We own this.”
And if the justices don’t follow the ordinary rules of administrative law, the Supreme Court will own it, too — as it will own President Trump’s effort to keep his tax returns secret if the justices don’t steer clear of his cases. Can the Supreme Court save itself from itself? We’re about to find out.
The Times is committed to publishing a diversity of letters to the editor. We’d like to hear what you think about this or any of our articles. Here are some tips. And here’s our email: letters@nytimes.com.
Follow The New York Times Opinion section on Facebook, Twitter (@NYTopinion) and Instagram.
"can" - Google News
November 21, 2019 at 06:00PM
https://ift.tt/2XKLRdt
Can the Supreme Court Save Itself? - The New York Times
"can" - Google News
https://ift.tt/2NE2i6G
Shoes Man Tutorial
Pos News Update
Meme Update
Korean Entertainment News
Japan News Update
No comments:
Post a Comment