Arkansas GOP Sen. Tom Cotton urged Supreme Court Chief Justice John Roberts to step down from the bench and enter the political arena, if his true desire is to shape public policy.
Cotton’s statement came after Roberts chose to side with the liberal justices on the Supreme Court in a 5-4 decision handed down Thursday, determining that the Trump administration did not explain well enough why it wanted to end the Deferred Action on Childhood Arrivals, created by President Barack Obama by executive order.
But as National Review’s David Harsanyi noted on Thursday, Obama himself had acknowledged on numerous occasions that he did not have the authority to issue such an order — before he did it.
To Cotton, the court’s Thursday ruling was political, not legal.
“It cannot be the law that what Barack Obama has unlawfully done, no president may undo. Yet John Roberts again postures as a Solomon who will save our institutions from political controversy and accountability,” Cotton stated in a news release.
“If the Chief Justice believes his political judgment is so exquisite, I invite him to resign, travel to Iowa, and get elected. I suspect voters will find his strange views no more compelling than do the principled justices on the Court.”
It cannot be the law that what Barack Obama has unlawfully done, no president may undo. https://t.co/xJsBbeCMEj
— Tom Cotton (@SenTomCotton) June 18, 2020
In his majority opinion, Roberts made the implausible claim the justices were not seeking a specific policy outcome.
“We do not decide whether DACA or its rescission are sound policies. ‘The wisdom’ of those decisions ‘is none of our concern,’” the chief justice wrote.
“We address only whether the agency complied with the procedural requirement that it provide a reasoned explanation for its action,” Roberts continued. “Here the agency failed to consider the conspicuous issues of whether to retain forbearance and what if anything to do about the hardship to DACA recipients.
“That dual failure raises doubts about whether the agency appreciated the scope of its discretion or exercised that discretion in a reasonable manner.”
Since when is it the judicial branch’s role to gauge if the executive branch exercised its “discretion in a reasonable manner” in terms of ending an illegal program?
Obama is the one who did not exercise proper discretion when he made up DACA out of whole cloth.
Justice Clarence Thomas rightly argued in his dissent that the ruling was politically expedient, but not legally sound.
“Today’s decision must be recognized for what it is: an effort to avoid a politically controversial but legally correct decision,” Thomas wrote. “Under the auspices of today’s decision, administrations can bind their successors by unlawfully adopting significant legal changes through Executive Branch agency memoranda.”
“Without grounding its position in either the [Administrative Procedure Act] or precedent, the majority declares that [the Department of Homeland Security] was required to overlook DACA’s obvious legal deficiencies and provide additional policy reasons and justifications before restoring the rule of law,” the justice added.
President Donald Trump promised his administration will continue the legal battle, given the Supreme Court remanded the case to the lower court on procedural grounds only.
“The Supreme Court asked us to resubmit on DACA, nothing was lost or won. They ‘punted’, much like in a football game (where hopefully they would stand for our great American Flag),” Trump tweeted on Friday. “We will be submitting enhanced papers shortly in order to properly fulfill the Supreme Court’s ruling & request of yesterday.”
…ruling & request of yesterday. I have wanted to take care of DACA recipients better than the Do Nothing Democrats, but for two years they refused to negotiate – They have abandoned DACA. Based on the decision the Dems can’t make DACA citizens. They gained nothing! @DHSgov
— Donald J. Trump (@realDonaldTrump) June 19, 2020
“I have wanted to take care of DACA recipients better than the Do Nothing Democrats, but for two years they refused to negotiate – They have abandoned DACA. Based on the decision the Dems can’t make DACA citizens. They gained nothing!”
This is far from the first time Roberts has taken the side of liberals for apparently political reasons. In a May 30 decision, he was part of the majority — with the court’s four liberal judges — that ruled against California churches in a key religious freedom case. On June 15, he was part of the 6-3 decision that found the 1964 Civil Rights Act, which prohibited discrimination on the basis of sex, covered gay and transgender cases as well.
And, of course, back in 2012, his was the deciding vote that saved Obamacare, former President Barack Obama’s signature health law.
Who knows? Maybe Thursday’s decision, in the end, will help Trump politically by not throwing the immediate future of DACA recipients in the election mix.
That really does not matter. What does matter is that Roberts and all the justices abide by the rule of law.
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