Textualism like Gorsuch showed today removes intelligent judges from the equation. It leads to bonkers results sometimes.Originally Posted by 57Brave
Those opposing Gorsuchs appointment pointed to that truck driver case of his and noted how heartless it was. That same adherence to textualism is now being celebrated by the same people.
Interesting fact, today's decision doesn't protect bisexuals.
Gorsuch's reasoning for including homosexuality under Title VII is as follows:
Suppose you have two individuals and both are attracted to men. One of these individuals is a man and one is a woman. If you fire the man for that and not the woman, you've engaged in discrimination based on sex.
However, what about bisexuals? You can fire everyone attracted to both men and women without treating the sexes differently.
This bizarre result is brought to you by strict textualism!
Is that in the opinion
"I am a victim, I will tell you. I am a victim."
"I am your retribution."
The example of the man and woman is lifted straight from the opinion. It also is very deliberate in its language. It consistently says homosexuality, not sexual orientation.
The "bizarre result" is brought to you by David Chauvin.
FFF - BB, BB, 2B, HR, 2B, HR, 1B, BB, BB, 1B, BB, BB, HR
SCOTUSblog
@SCOTUSblog
· 15m
#SCOTUS rules against Trump administration in challenge to
decision to end #DACA program, which allowed noncitizens brought
to this country illegally as children to apply for protection from
deportation, holding decision was arbitrary and capricious
https://www.huffpost.com/entry/supre...b6f5350a34cec5
amy walter
@amyewalter
·
8m
SCOTUS rulings on DACA and gay rights are
basically in line with about 70-75% of the population.
https://pewresearch.org/fact-tank/20...y-as-children/
Last edited by 57Brave; 06-18-2020 at 09:24 AM.
The best way to stop a bad guy with a gun is to make sure he doesn’t get a gun.
Elie Mystal
@ElieNYC
·
2m
What I take away from the DACA decision
is that Roberts ain't scared of @realDonaldTrump
anymore.
The best way to stop a bad guy with a gun is to make sure he doesn’t get a gun.
EJ Dionne
@EJDionne
·
32m
Never have the words “arbitrary and capricious” been more appropriate.
They apply to almost everything the #Trump administration does.
This is a great victory for simple decency. But the narrowness of the vote
shows the danger of Trump getting another Court appointee.
The best way to stop a bad guy with a gun is to make sure he doesn’t get a gun.
There should be little more irrelevant to a judicial decision than public opinion. The whole point of the judiciary is to uphold the rule of law even when it's unpopular, especially when it's unpopular.
I HATE this decision. I couldn't care less about DACA or what Trump wants. The whole process of DACA has resulted in a MASSIVE ceding of power to the executive. The idea of DACA is in direct contradiction of the immigration statutory scheme. However, it was started under the theory that administrative agencies cannot prosecute every violation of the law and so prioritize their prosecutions. The President basically sets up a scheme in which deportation actions against certain individuals is given the lowest priority. This is a dangerous growth of presidential power on its own. But it doesn't stop there.
The end result was the setting up of a full regulatory scheme that bears no resemblance to actual immigration statutes. And this regulatory scheme is so official that the Administrative Procedures Act must be followed to remove it.
Just think of how this could be abused by future presidents. Suppose Trump decides he wants to do away with the Clean Air Act. So he sets up DACAA, the Deferred Action on Clear Air Act. He says he's prioritizing prosecutions of all Clean Air Act violations to the lowest level effectively ending them. He then sets up a regulatory scheme for this. You could have years of no Clean Air Act while a new President tries to undo the mess.
That's what this decision today does. People feel all warm and fuzzy about it because it it protects child immigrants who have grown up here. I beg people to think of the implications!
Significance of Roberts writing the opinion?
Not much significance. He was the swing vote and the swing vote usually gets to write the opinion. Also, when the Chief Justice is in the majority, he gets to decide who writes the opinion.
57Brave (06-18-2020)
But seriously people, think of how a President might abuse the process of "prioritizing administrative resources" and how applying the Administrative Procedures Act to such abuse would give it even more staying power. Just think if the EEOC stopped enforcing racial discrimination laws, or if the CFPB suddenly had no ability to bring cases against financial institutions, or if the EPA was prevented from stopping the dumping of toxic waste into water sources. If immigration law can turned on its head by executive order and then held in place by the APA, that same process can be applied to any number of things.
Don't look at the facts here, look at the road that has now been fully constructed and just think how a President you despise could use that road.
How is that different from any 5-4 decision ?
The best way to stop a bad guy with a gun is to make sure he doesn’t get a gun.
I read the decision fully over lunch. I take back everything I said. I was 100% wrong. As wrong as I could be. Here's the money quote:
"The APA’s “basic presumption of judicial review” of agency action, Abbott Laboratories v. Gardner, 387 U. S. 136, 140, can be rebutted by showing that the “agency action is committed to agency discretion by law,” 5 U. S. C. §701(a)(2). In Heckler v. Chaney, the Court held that this narrow exception includes an agency’s decision not to institute an enforcement action. 470 U. S. 821, 831–832. The Government contends that DACA is a general non-enforcement policy equivalent tothe individual non-enforcement decision in Chaney. But the DACA Memorandum did not merely decline to institute enforcement proceedings; it created a program for conferring affirmative immigration relief. Therefore, unlike the non-enforcement decision in Chaney, DACA’s creation—and its rescission—is an “action [that] provides a focus for judicial review.” Id., at 832."
I don't know if this is difficult for non-attorneys to read (I have a hard time telling) but if it is, here's what it means.
The Administrative Procedures Act makes executive agency actions generally reviewable by the courts. One exception is an agency deciding to not bring an enforcement action (in this case the decision to not bring a deportation action). That is considered purely discretionary. DACA was created on the premise that deferring deportation actions was simply the discretionary act to not bring an enforcement action. If this was true then its rescission would be discretionary and not reviewable.
HOWEVER, the SCOTUS determined that DACA wasn't a decision to not bring an enforcement action, it was a policy of non-enforcement and so it is reviewable. Since the creation of the policy is not discretionary and is reviewable, the rescission is not discretionary and is reviewable.
The court was only presented with the question of whether the rescission was valid and so could not rule on whether DACA was valid as a whole.
But what this does that actually has be ecstatic now that I've read the case and understand it, is roll back the idea that a President can undermine a valid statute using his discretionary power to decide not to enforce. This case does the exact opposite of what I initially thought. It's the best case I've seen in a while and it should have been 9-0.
However, while DACA won today, this might actually set up its ultimate destruction. The SCOTUS has now specifically ruled the creation of DACA to be reviewable. That's going to bring it back to the SCOTUS at some point and I they could determine that a policy of non-enforcement usurps the power of Congress.
I originally thought Roberts bought the argument that it wasn't discretionary because the AG said DACA was illegal and so the agency had to rescind it making the decision non-discretionary. That's a bonkers argument. Robert's logic is actually extremely sound.
It is difficult for this non attorney to read these decisions.
Nail meet head
Still not sure I understand
Thanks man
striker42 (06-18-2020)
Outside of Dreamers not having to live with the threat of being rounded up and deported.
I get that
Really is fascinating to see Roberts be the middleman so much ever since the conservative wing took a firm majority with Gorsuch and Kavanaugh.
Even if Biden wins, the first thing to do will be to replace RBG. Then Breyer is also there at 81 yo.
Thomas is only 71 so very unlikely he retires in this decade.
Forever Fredi
Basically it comes down to this. DACA doesn't comply with current immigration law. It's one saving grace was the idea it was discretionary as a decision not to bring actions and so not reviewable by the courts.
The problem is if the decision to create it is not reviewable, the decision to wind it up isn't reviewable. The court found the whole thing reviewable as it goes beyond a simple decision not to bring an enforcement action.
This means DACA as a whole will be reviewed and if it doesn't comply with immigration law then it's out.
The good news is a future president can't use the DACA model to gut the EPA or the SEC.
Looking even closer, I think all 9 justices were on board with DACA being reviewable. The 4 dissenting conservatives would have allowed the DACA wind down though.
I find the fact that all 9 agreed on the reviewability of executive non enforcement schemes to be very encouraging.
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