Legal Docket: DACA at the Supreme Court

NICK EICHER, HOST: It’s The World and Everything in It for Monday,  the 18th of November, 2019. Good morning to you, I’m Nick Eicher.

MARY REICHARD, HOST: And I’m Mary Reichard. I hope you’ve got your bag packed, Nick! Because this is the week we go to Nashville, Tennessee! You, me, Megan Basham, Paul Butler, Myrna Brown, Jonathan Woods, J.C. Derrick, Jenny Rough, Trillia Newbell, Emily Whitten will be there.

EICHER: Yes, it’s the third of our live events. The World and Everything in It Live, and I usually pack my bags at least five minutes before leaving the house.

REICHARD: You have a system down! As a guy who travels a lot.

EICHER: That I do! And these live events are something I get so much more out of than what I put into it. It’s so encouraging and energizing to meet people who listen to the program and support the program, as we say everyday. Looking forward to meeting listeners like you.

REICHARD: We’re getting full, but there’s still a seat for you. You do need to register, though. It’s free, but you’ll need to reserve your seat. Just go to worldandeverything.org, hover over the “engage” tab, then click “live events.” Register there, and we’ll see you on Thursday night at 7!

EICHER: This Thursday night at 7 in Nashville. 

And, Mary, one more little thing—a little gigabyte thing, possibly 9 GB thing. I’m so embarrassed.

I inadvertently caused—indirectly—but I caused it. Probably several gigabytes worth of content placed on your phone. 

REICHARD: Yes, dumped it onto my phone. 

EICHER: Yep, and a few others I heard about.

And I’m so sorry. Here’s what happened. We switched providers to deliver the program to you. Initially, it made only a few programs available, and we know you sometimes have to binge listen and catch up, and you wouldn’t have been able to do it with just the newest programs. So I asked that the maximum number be made available, not thinking that they’d push out as new.

So you may have had all those programs load automatically, and if you did, please accept my apologies.

It’s easy to delete them and clear space on your device, and I’m sorry you have to do that. But the silver lining here is that those archives are available on our feed.

I’m just sorry if I caused a bunch of clutter on your phone. 

So if you come to Nashville, you may have a bone to pick with me. And I’ll be right there. I’ll face the music.

REICHARD: Appreciate what we lawyers call mea culpa, but I’ve got it all cleared off my phone. It didn’t take long. 

EICHER: Well, on to the Supreme Court. 

This was the sound outside the court from those who support the presidential executive order called DACA—that’s Deferred Action for Childhood Arrivals:  

CHANTING: Home is here! Home is here! Home is here!

REICHARD: These are people whose parents brought them to the United States illegally as children. Their legal status is at stake in a dispute over the reversal of that DACA program.  

DACA was an Obama administration order. Those now-grown children who’ve lived in this country most of their lives could apply for protection from deportation. They then could work in the United States, get a driver’s license, access health insurance. 

Restrictions applied: for example, no felony record, and they had to renew their applications every two years.

EICHER: Five years later, the Trump administration announced reversal of the prior administration’s executive order. It cited Article I, Section 8 of the Constitution that assigns authority to Congress, not the president, to determine the nation’s immigration rules. 

The Trump administration supported leaving the program in place for a time while Congress negotiated a political compromise. But Democrats refused because part of that compromise involved beefing up the southern border with a wall.

REICHARD: And then came the lawsuits. Challengers argue the way President Trump ended DACA violated the law; they say it is akin to a federal rule-making which has as part of the process time for public comment. That didn’t happen.  

Ted Olson argued on behalf of those challengers. Olson is former solicitor general under George W. Bush.

OLSON: The government’s termination of DACA triggered abrupt, tangible, adverse consequences and substantial disruptions in the lives of 700,000 individuals, their families, employers, communities, and Armed Forces. That decision required the government to provide an accurate, reasoned, rational, and legally sound explanation. 
It utterly failed to do so…

What Olson’s talking about is a legal concept known as a reliance interest. That is to say, people reorder their lives trusting that a policy of the government will remain. Many of these young people didn’t find out they were here illegally until they didn’t qualify for a college loan, for example. 

But Olson’s argument is an odd one: everyone agrees a president has the right to rescind a prior president’s executive order. Olson argued President Trump needs a better reason.

OLSON: Basically, the policy decisions are saying we understand people may have relied on this, but that’s just too bad. That’s basically all it was.

Defending the current administration’s right to rescind DACA was U.S. Solicitor General Noel Francisco. He argued reliance on DACA by its recipients was acknowledged, but that’s just not the point.

FRANCISCO: DACA was always meant to be a temporary stop-gap measure that could be rescinded at any time, which is why it was only granted in two-year increments. So I don’t think anybody could have reasonably assumed that 
DACA was going to remain in effect in perpetuity. 

Francisco said the orderly wind down of DACA mitigated any reliance interests. Besides, reliance alone doesn’t justify violating the Constitution. And what the other side is asking for is rather trivial.

FRANCISCO: All that they seem to be saying is we have to write a few more words.

But some justices didn’t buy the underlying premise of the Trump administration that DACA was illegal in the first place. Listen to Justice Elena Kagan, who references a key decision memo written by former secretary of the Department of Homeland Security, Kirstjen Nielsen:

KAGAN: If the program turns out not to be of questionable legality, in other words, if some or many of us think that the original program was legal, how does her memo suffice to do that balancing? 


By balance, she means taking into account the reasons to end DACA as well as the consequences.

And Justice Sonia Sotomayor made clear which way she leaned on the matter.

SOTOMAYOR: That this is not about the law; this is about our choice to destroy lives.

Ted Olson argued the case ought to be sent back to DHS to figure out a better explanation than the ones it already gave. 

Justice Neil Gorsuch:

GORSUCH: What good would another five years of litigation over the adequacy of that explanation serve?

Another important thread to all of this is whether the Supreme Court even has any business reviewing the case in the first place. 

Now, we mentioned at the beginning the government’s argument that Article 1, Section 8 of the Constitution is the issue. Or, as the Wall Street Journal editorialized: this case is about a breakdown in the separation of powers. 

By the way, the Journal is conservative, but it’s also pro-immigration. The editorial concluded that this is a matter for the political branches to work out, not the Supreme Court. 

Most people can agree that children ought not be punished because their parents broke the law. 

But the legal issue here is what power the Constitution gives the president to commandeer immigration policy.

This final case today arose in Kansas during a traffic stop. 

In 2016, a sheriff’s deputy ran a registration check on a 1995 Chevy pickup truck with Kansas plates. He hadn’t observed any traffic violations to prompt that search, but he did learn the truck was registered to a Charles Glover, and that Glover’s license had been revoked. 

So the deputy pulled the truck over, confirmed Glover was the driver, and charged him as a habitual violator of state traffic laws. 

Glover’s lawyer, Sarah Harrington, argued this violates her client’s Fourth Amendment protection against unreasonable search and seizure.

HARRINGTON: Kansas and the United States ask this court to adopt a bright-line nationwide rule that it is always reasonable to assume that a car is being driven by its unlicensed owner…. They simply assert that it is common sense in every circumstance and in every community in the country. But that’s not true, and that’s not how the Fourth Amendment works. 

But Kansas Solicitor General Toby Crouse argued otherwise.

CROUSE: Here, Deputy Mehrer relied upon the common-sense understanding that a registered owner, given the pervasiveness of automobile use in the United States, was likely to be driving again, warranted additional investigation. It would have been poor police work for Deputy Mehrer not to initiate the stop in this case and investigate further to confirm or dispel his suspicion.

But some justices pointed out law enforcement’s job is public safety. Some people’s licenses are suspended for not paying fines or court costs, for example. Hardly a safety matter.  

Justice Kagan spun a scenario to test the waters:

KAGAN: Suppose that a municipality has a law that says everybody has to carry their driver’s license with them at all times. And suppose that a particular police department actually did a kind of survey or, you know, a study of their practices and found that actually 50 percent of teenagers do not carry their driver’s license with them at all times. All right? So now it’s like common sense that if you see a teenager, she won’t be carrying her driver’s license with her. Does that give the police officer the ability to stop every teenager that he sees?

HUSTON: Generally not…

But Harrington, again for the truck driver, pushed for a rule that says law enforcement must support common sense with something courts can review.

Justice Alito wondered just how many things police must consider before pulling over a vehicle when the owner has a suspended license.

ALITO: Trying to check with headquarters as to the basis for the license suspension? Whether it’s an urban area or a rural area or someplace in between? Whether it’s a highway or a city street? Whether it’s raining? Whether it’s dark? 

Maybe whether it’s a law-abiding community where people who have suspended licenses never drive? The officer has to take into account all of those factors.

No, the truck driver’s lawyer argued. But law enforcement must be required to take more into account than a suspended license before pulling someone over.

Attorney Crouse for Kansas ended this way:

CROUSE: The Fourth Amendment does not and should not apply differently based upon the age and experience of the officer or the time of day of the Fourth Amendment. The rule that respondents propose would require the officers to let this vehicle go at night because it’s impossible to identify. The states have a strong interest in regulating the roadways and they have a strong law enforcement interest.

For example, if there’s a report of a child that had been abducted, and we were looking for the mother, the officers would be reasonable to rely upon the license plate.

ROBERTS: Thank you, counsel. The case is submitted.

One nice touch, reported by Nina Totenberg of NPR. All the parties in this case knew each other and seemed to be friends.  And it so happened that Glover was standing in the line to hear the argument, but wasn’t sure he’d get in. 

So the assistant DA who’d prosecuted him plucked Glover from the line to ensure he’d get a seat.  

Kindness, even in this circumstance. 

More of that please. 

And that’s this week’s Legal Docket.

(AP Photo/Susan Walsh) A view of the Supreme Court in Washington, Monday, Nov. 11, 2019. 

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