Arbitrary and capricious.
That’s how Chief Justice John Roberts characterized
the Trump administration’s approach in trying to dismantle DACA, the federal program that protects undocumented immigrants brought to the U.S. as children. Roberts, along with four other justices, blocked that effort, preserving, for now, the ability of some 650,000 “dreamers” to live, study, and work in this country.
I’ve heard many emotional stories about the decision’s impact in recent days: The recent nursing school graduate, working nonstop throughout the pandemic, anxiety about deportation always in the back of his mind. The young mother worried about being separated from her American-born children and sent to a country she hasn’t seen since she was her kids’ age. The college student who runs miles in dark, kept from sleep by fear that her nightmares could become reality. “I feel like I can finally breathe,” she told me after Thursday’s ruling.
But I want to talk about rulemaking. Because that’s what was at the heart of Supreme Court decision — and it’s something to consider as we await an executive order that could place limits on optional practical training, the work program for international graduates.
The Court’s decision wasn’t about the merits of DACA. It wasn’t even about whether the Trump administration had the right to end the program, which the justices agreed it did. Rather, the majority ruled that officials went about doing so wrongly and sloppily. The Department of Homeland Security did not provide a “reasoned explanation” for its action, as is procedurally required, the justices said. Nor did it properly consider the impact of its decision on DACA recipients, their families, their communities, the country.
This isn’t the first time the Trump administration was tripped up by rulemaking. Its “unlawful presence
” policy, which could’ve barred international students from the U.S. for relatively small visa infractions, was also blocked by a judge because of failure to follow regulatory processes. Early versions of the travel ban, too, were struck down, in part because the administration had not sufficiently demonstrated the risks of admitting certain travelers, as is required. On a very different matter, the Supreme Court last year prevented the administration from adding a question about citizenship to the Census, again because officials failed to provide an adequate explanation for doing so.
For students, colleges, and other advocates of OPT, that track record should serve as something of a relief. If the executive order limits OPT — and the battle over whether to include the program has been fierce — it would almost certainly not do so outright but rather set in motion a rulemaking process. With the election looming, that regulatory action will have to be expedited. The administration had years to get the DACA repeal right but will have just a few months to roll back OPT. No doubt proponents of the program will be watching for any missteps.
Still, when its rulemaking has been stymied, the Trump administration has shown a willingness to go back and try again. A third version of the travel ban was eventually given an OK by the Supreme Court. On Friday, the president signaled on Twitter that he would renew his effort to end DACA, despite the program’s enormous popularity
among Americans. In pointing out the administration’s stumbles in its ruling, the Court arguably gave it a roadmap for a redo.