Chief Justice Roberts’s Long, Longer, and Longest Games
It is said that Chief Justice Roberts has a “long game.” I think this label is imprecise. He has a long game, a longer game, and the longest game.
The Long Game
During the Trump Administration, Chief Justice Roberts wrote several decisions that (in my view) radically expanded a court’s power to set aside agency action as arbitrary and capricious. The DACA and Census cases empowered the judiciary to second-guess every facet of the executive-branch’s decision. In hindsight, a judge can simply ask, “Why didn’t you address the costs and benefits of X?” And if a trial judge makes that finding, appellate courts are then obliged to defer. These rulings handcuffed the Trump Administration, and prevented it from undoing Obama-era policies.
At the time, I speculated that DHS v. Regents was a byproduct of #TrumpLaw, and would not survive the next administration:
I sincerely hope this case is a ticket good for one ride on the John Roberts express. This framework, if taken seriously–which I do not–would make it impossible for any agency to modify an old policy that is in effect. There will always be countless ways to address reliance interests. My prediction: the DACA case will soon be treated like the APA analysis in the Census case. Another blip in administrative law that was only needed for the moment.
Once again, I was wrong. (By now, you should really ignore all of my predictions; my track record is dismal). On Tuesday evening, the Court declined to disturb a district injunction that blocked the Biden Administration from undoing the Trump Administration’s “Remain in Mexico” policy. (Sorry, that sentence was a mouthful). Justices Breyer, Kagan, and Sotomayor noted their dissents. It is safe to assume the Court’s six conservatives agreed with the shadow docket ruling. The Court issued a few sentences of reasoning, which is actually a lot for the shadow docket:
The application for a stay presented to Justice Alito and by him referred to the Court is denied. The applicants have failed to show a likelihood of success on the claim that the memorandum rescinding the Migrant Protection Protocols was not arbitrary and capricious. See Department of Homeland Security v. Regents of Univ. of Cal., 591 U. S. ___ (2020) (slip op., at 9-12, 17-26). Our order denying the Government’s request for a stay of the District Court injunction should not be read as affecting the construction of that injunction by the Court of Appeals.
The Court is signaling, loud and clear, that the rescission of policy is likely arbitrary and capricious. And the order cites specific pages from Regents: pages 9-12 , and 17-26. The Court is providing the lower courts with the pincites needed to halt any r
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