Two years ago, Chief Justice John Roberts gave the Trump administration a very important piece of advice: When you come to the Supreme Court, you need to do your homework.
In his majority opinion sanctioning the Trump administration’s travel ban, Roberts disregarded Trump’s public statements that “Islam hates us,” and that America has problems “with Muslims coming into the country,” because the ultimate text of the travel ban issued by the administration “says nothing about religion.” Rather, Roberts wrote, the ban “reflects the results of a worldwide review process undertaken by multiple Cabinet officials and their agencies.”
At the time, I found it shocking that the chief justice was essentially telling the Trump administration that it could turn the president’s prejudices into public policy with adequate lawyering and sufficient legal pretext. I assumed that the administration would do the necessary work of providing pretenses for its decisions, in order to achieve the policy outcome it desired. What I did not expect was that the Trump administration would not even bother to do that much.
On Thursday, Roberts joined with the four Democratic appointees on the Court to invalidate the Trump administration’s decision to repeal the Obama-era Deferred Action for Childhood Arrivals policy, which has shielded about 700,000 undocumented immigrants brought to the U.S. as children from deportation. The decision states that the Trump administration has the power to rescind the policy, but that the “arbitrary and capricious” manner in which it did so violated the Administrative Procedure Act, which governs decisions made by government agencies. The Department of Homeland Security, Roberts writes, was obliged to consider all of its options before repealing DACA wholesale. “Making that difficult decision was the agency’s job,” Roberts argues, “but the agency failed to do it.”