Jurisprudence

Trump Is Now Openly Defying the Supreme Court

President Donald Trump at the White House on Monday.
Alex Wong/Getty Images

The Trump administration announced on Tuesday that it will continue to defy a federal court order compelling the full restoration of DACA, the Obama-era program that allows 700,000 immigrants to live and work in the United States legally. By doing so, the administration has chosen to flout a decision by the Supreme Court, effectively rejecting the judiciary’s authority to say what the law is.

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Donald Trump first attempted to rescind the Deferred Action for Childhood Arrivals program in September 2017, a move that would’ve stripped its beneficiaries of work permits and subjected them to deportation. But his administration continually cut corners, failing to explain the basis for its decision and refusing to consider the impact of DACA repeal on immigrants, their communities, and their employers (including the U.S. Army). This June, the Supreme Court ruled that the administration’s actions were “arbitrary and capricious” under federal law and therefore “set aside” DACA repeal.

To implement that decision, U.S. District Judge Paul Grimm compelled the administration to restore DACA to its pre-repeal condition on July 17. Grimm’s order required the Department of Homeland Security to let DACA beneficiaries renew their status for two years, accept new applicants, and restore “advance parole,” which permits travel outside the country. But DHS did not do that. Instead, the agency maintained that it would reject new DACA applicants. It  also declined to accept DACA renewals or reinstate advance parole.

At a hearing Friday, Grimm tore into Justice Department attorneys for flouting his order. The government’s actions, he explained, created “a feeling and a belief that the agency is disregarding binding decisions” from the Supreme Court. DOJ attorneys insisted that DACA applications were merely “on hold,” or “placed into a bucket,” while the administration decided how to proceed. But, as Grimm retorted, “it is a distinction without a difference to say that this application has not been denied, it has been received and it has been put in a bucket.” The judge once again directed DHS to comply with the law by accepting new applicants and processing renewals.

Incredibly, the agency has decided to disobey this order, as well. On Tuesday, acting DHS Secretary Chad Wolf declared that it would not accept new applications and would only grant one-year extensions to current beneficiaries “on a case by case basis.” This tactic will make it easier for Trump to deport DACA beneficiaries if he wins reelection, since their status will expire sooner. The agency will also deny advance parole “absent exceptional circumstances.” This new policy is nothing less than brazen defiance of a federal court ruling. Grimm, and the Supreme Court itself, ordered DACA’s full resuscitation, which requires the acceptance of new applicants and the conferral of two-year renewals. There is simply no legal basis for DHS’s zombie version of the program.

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The administration has tried this malfeasance before with a different policy—and it didn’t work then, either. After the Supreme Court blocked Trump’s addition of a citizenship question to the 2020 census, Trump insisted they would find a way to do it anyway. That court decision, too, found that the government had violated the law through dishonest incompetence. And in its aftermath, the administration scrambled to work around SCOTUS and snatch a victory from the jaws of defeat. It failed, though not before tiptoeing up to the line of defying the Supreme Court.

Now the administration has crossed that line—sprinted past it, really, without any apparent hesitation. It is true that SCOTUS allowed the Trump administration to take another stab at rescinding DACA. But Wolf’s memo does not purport to initiate a new process of winding down the program. Rather, Wolf presented these new rules as “interim changes” while DHS decides how to repeal DACA legally. Certainly, the agency can go back to the drawing board and devise a new method of killing the program. But neither the Supreme Court’s decision nor Grimm’s order gave Wolf the power to “limit [DACA’s] scope in the interim.”

It is no surprise that DHS, whose agents are unconstitutionally kidnapping and brutalizing peaceful protesters in Portland, Oregon, would disregard the law. Trump is doubling down on his smash-and-grab approach to governance. While the president demands law and order and Attorney General William Barr complains about mass disrespect of authority, the administration is intent on getting its way even when it means ignoring a federal court order. The president’s men are restrained only by their own sense of what they can get away with.

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