From Justice Thomas’ dissent in today’s DACA case:
DHS created DACA during the Obama administration without any statutory authorization and without going through the requisite rulemaking process. As a result, the program was unlawful from its inception. The majority does not even attempt to explain why a court has the authority to scrutinize an agency’s policy reasons for rescinding an unlawful program under the arbitrary and capricious microscope. The decision to countermand an unlawful agency action is clearly reasonable. So long as the agency’s determination of illegality is sound, our review should be at an end.
Today’s decision must be recognized for what it is: an effort to avoid a politically controversial but legally correct decision. …
Perhaps even more unfortunately, the majority’s holding creates perverse incentives, particularly for outgoing administrations. Under the auspices of today’s decision, ad- ministrations 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 unless 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.
Below, Ted Cruz absolutely wrecks C.J. Roberts, the fifth and deciding vote and the author of this nonsensical, lawless decision and the participant/author of many other nonsensical, lawless decisions that have one thing in common – the Left achieves its policy goal:
It’s time to stop saying “C.J. Roberts sides with the four liberal justices,” and to acknowledge the reality that C.J. Roberts is the fifth liberal justice.
