The U.S. Supreme Court has upheld the Deferred Action on Childhood Arrivals (DACA) program, ruling that the Trump Administration failed to comply with federal regulation procedures.
In an opinion for the 5-4 majority, Chief Justice John Roberts explained, “we address only whether the agency complied with the procedural requirement that it provide a reasoned explanation for its action.” Justice Clarence Thomas, the sole African American on the high court, thought there was more to it.
“The majority today concludes that [the Department of Homeland Security] was required to do far more,” Thomas wrote. In effect, the majority was holding the decision of the Trump Administration to a higher standard than President Barack Obama’s “executive action” that established DACA illegally in the first place. The decision, Thomas wrote in his dissent, “must be recognized for what it is: an effort to avoid a politically controversial but legally correct decision.”
The chief justice has some prior experience massaging the law in order to arrive at a politically desirable outcome. Where he was unwilling to read into the true intent behind the technical noncompliance of the Trump Administration on Thursday, he was more than willing in 2012 to patch up the illegal-as-written federal subsidies in the Affordable Care Act.
“It stands to reason that Congress meant for those provisions to apply in every State as well,” Roberts wrote as he upheld Obamacare. Though Congress had failed to write the Affordable Care Act in such a way as to let the federal government provide health care subsidies in every state, Roberts reasoned nevertheless it must have meant to. Thus, the chief justice was willing to aid the legislative body from the bench.
To argue his case, Roberts cited the dissenting opinions of his colleagues, who argued that Obamacare would collapse without federal subsidy in all states, as evidence that congress indeed must have intended to subsidize them all. As Brett LoGiurato of Business Insider explained at the time, “He’s basically telling his colleagues: I’m right, and your words prove it.”
As the late Terry Jones told King Arthur (Graham Chapman) in “Monty Python and the Holy Grail”: I didn’t vote for you. And we don’t vote for Supreme Court justices, either, which makes it particularly frustrating when they function as a robed politburo. In Roberts’ case, as Max Bialystock told Roger Debris in “The Producers,” “that robe is you!”
The amazing politburo robe also suits Justice Neil Gorsuch. Shortly before Roberts’ executive order on DACA, Gorsuch essentially rewrote the 1964 Civil Rights Act. For Ken Masugi, Gorsuch “took a knee”—which is true but incomplete.
Gorsuch and Roberts are intelligent men, but as Saul Bellow said, “a great deal of intelligence can be invested in ignorance when the need for illusion is deep.” The illusion here is the veneration of Nancy Pelosi, CNN, and the Washington Post. To have the veneration, as recent rulings confirm, Supreme Court justices will cave to just about anything.
In strictly non-legal terms that even a deplorable Trump supporter might understand, they combine bullshit and chickenshit to arrive at the desired political end. Perhaps Pennsylvania Health Secretary Dr. Rachel Levine could donate some gear no longer in use, but the real need here is for a spine transplant. And now abide ignorance, casuistry, and cowardice, but the greatest of these is cowardice. Or maybe it’s a three-way tie.
In the argot of DACA, foreign nationals illegally present in the United States are “Dreamers.” They all want to be brain surgeons and help baby pandas, apparently. But legal immigrants and legitimate citizens know better. Upholding DACA relieves the Dreamers’ lawbreaking parents of all responsibility.
Likewise, DACA draws down U.S. taxpayer dollars for foreign nationals, with zero compensation from their own governments in Mexico, Honduras, and El Salvador. A nation in fathomless debt, getting worse by the day, thus relieves corrupt foreign governments of responsibility for their own citizens. These considerations do not, however, move Roberts to give the Trump Administration a pass when it comes to legal technicalities.
Those wearing an amazing technicolor dreamer robes can go right on emanating in the penumbras when it suits them. But at least Justice Clarence Thomas has been on to their game from the start.