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Chief Justice John Roberts joined the four liberals, as he so often has, in ruling that the Trump Administration hadn’t properly followed the Administrative Procedure Act (APA). The Court remanded the rescission back to DHS to rewrite with a formal rule-making with notice and comment period.

This may seem routine, but the problem is that the Obama Administration never followed the APA when it issued Daca in 2012. Daca was never tested in court, but the Fifth Circuit Court of Appeals in 2015 issued an injunction against a companion order to Daca. The Supreme Court upheld that injunction, and the Trump Administration had every reason to believe Daca was thus illegal too.

“Today the majority makes the mystifying determination that this rescission of DACA was unlawful. In reaching that conclusion, the majority acts as though it is engaging in the routine application of standard principles of administrative law,” Justice Clarence Thomas writes in a dissent joined by Samuel Alito and Neil Gorsuch. “On the contrary, this is anything but a standard administrative law case.”

As Justice Thomas explains, a President should not have to follow normal administrative procedures to reverse a policy that was unlawful in the first place.

The Chief strains to rationalize his double regulatory standard by quibbling that a memo by former DHS Secretary Kirstjen Nielsen in June 2018 that expands on its original legal justification for ending Daca is a “post hoc” rationalization. But as Justice Brett Kavanaugh explains in his dissent, the Chief’s logic stretches the Court’s own precedents to rule the Nielsen memo out of legal bounds.

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