- In a 5-4 decision, the Supreme Court blocked the Trump administration from ending the Deferred Action for Childhood Arrivals program (DACA), which was put in place by President Obama in 2012.
- Under DACA, young immigrations who were brought to the country illegally could be protected from deportation and receive work authorization if they met certain qualifications.
- In 2017, the Trump administration announced it was ending DACA because Obama had acted illegally by enacting the program without congressional approval.
- The Supreme Court ruled that the Trump administration violated the federal law that governs administrative procedures when it ended the program.
SCOTUS Rules on DACA
The Supreme Court blocked the Trump administration’s attempt to end Deferred Action for Childhood Arrivals (DACA) on Thursday, a program that aims to assist young immigrants, often known as DREAMers, who were been brought to the U.S. illegally before the age of 16.
Under DACA, which was created by President Barack Obama through executive action in 2012, recipients are given protection from deportation and work authorization as long as they pursue education or military service and have a clean criminal record. Nearly 800,000 DREAMers have participated in the program since its initiation.
The Supreme Court decision comes as a striking blow for President Donald Trump, who has long criticized the program and made canceling it one of his central campaign promises.
In Septemeber 2017, Trump announced that he was going to wind down DACA and argued that it was illegal and unconstitutional because it was outside of Obama’s executive powers to create the program without Congress’ approval.
To back up this claim, the Trump administration has pointed to a memo sent to the Department of Homeland Security, which oversaw DACA, written by then-Attorney General Jeff Sessions.
In that memo, Sessions claimed that DACA was unconstitutional and should be shut down because it would face litigation.
But numerous lower courts blocked Trump’s decision and ruled that the argument that Obama lacked authority to enact DACA did not hold up.
The issue was eventually appealed to the Supreme Court, where Trump’s lawyers argued that even if Obama did have the authority to implement DACA, Homeland Security had the power to get rid of it.
Robert’s Majority Opinion
However, the Supreme Court upheld the lower court rulings in a 5-4 vote, where the court’s four liberal justices were joined by Chief Justice John Roberts, who wrote the majority opinion.
Notably, Roberts argued that the decision was not based on DACA itself or even whether or not the DHS had the power to scrap it, but rather that the Trump administration failed to give an adequate reason to justify ending the program.
Roberts wrote that the Trump administration’s decision to end DACA was “arbitrary and capricious” and in violation of the federal law that governs administrative procedure.
“The dispute before the Court is not whether DHS may rescind DACA,” he wrote. “All parties agree that it may. The dispute is instead primarily about the procedure the agency followed in doing so.”
“We do not decide whether DACA or its rescission are sound policies. ‘The wisdom’ of those decisions ‘is none of our concern,’” he continued. “We address only whether the agency complied with the procedural requirement that it provide a reasoned explanation for its action. 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. The appropriate recourse is therefore to remand to DHS so that it may consider the problem anew.”
As indicated in Robert’s remarks, the Supreme Court decision does not stop Trump from getting rid of DACA at some point in the future if his administration were to provide a stronger argument and follow proper federal procedures.
But if he were to proceed, there are a few issues. First of all, DREAMers are highly popular with the public— and not just Democrats.
A Politico/Morning Consult survey from earlier this month found that that a majority of those who voted for Trump in 2016 supported protecting DREAMers from deportation, and more than 75% of registered voters, said DACA recipients should be allowed to stay in the U.S.
DACA recipients are also important and successful parts of American society and the U.S. economy.
“DACA recipients have gotten advanced degrees; they have started businesses; they have bought houses, had children who are U.S. citizens; and 90 percent have jobs,” Nina Totenberg wrote for NPR. “Indeed, 29,000 are healthcare professionals, working on the front lines of the Covid-19 response.”
The DACA program is even popular with Republicans in Congress. Twice Senate Republican leadership worked closely with Democrats to craft deals that would protect the DREAMers, but both times Trump refused to sign the bills, and even threatened to veto one.
Another issue Trump could face if he tries to rid of DACA again is that it could take months, meaning any of his efforts would be put in limbo until after the election.
But, at least for now, the nearly 650,000 people who are currently DACA recipients are still protected. That alone is highly significant because, through the legal batter over the program, Trump administration officials have repeatedly said that they planned on deporting DREAMers if the Supreme Court ruled in favor of Trump.
In other words, if the ruling had gone the other way, people who are essential workers, parents of citizens, and major economic contributors—many of whom have lived in the U.S. most of their lives— could be sent back to countries they might not even remember.
See what others are saying: (NPR) (The New York Times) (The Washington Post)
Feds Investigate Classified Files Found in Biden’s Former Office
The documents reportedly include U.S. intelligence memos and briefing materials that covered topics such as Ukraine, Iran, and the United Kingdom
What Was in the Files?
President Biden’s legal team discovered about 10 classified files in his former office at the Penn Biden Center for Diplomacy and Global Engagement in Washington D.C., the White House revealed Monday.
The Department of Justice has concluded an initial inquiry into the matter and will determine whether to open a criminal investigation.
According to a source familiar with the matter who spoke to CNN, they include U.S. intelligence memos and briefing materials that covered topics such as Ukraine, Iran, and the United Kingdom.
A source also told CBS News the batch did not contain nuclear secrets and had been contained in a folder in a box with other unclassified papers.
The documents are reportedly from Biden’s time as vice president, but it remains unclear what level of classification they are and how they ended up in his office.
Biden kept an office in the. Penn Biden Center, a think tank about a mile from the White House, between 2017 and 2020, when he was elected president.
On Nov. 2, his lawyers claim, they discovered the documents as they were clearing out the space to vacate it.
They immediately notified the National Archives, which retrieved the files the next morning, according to the White House.
What Happens Next?
Attorney General Merrick Garland must decide whether to open a criminal investigation into Biden’s alleged mishandling of the documents. To that end, he appointed John Lausch Jr., the U.S. attorney in Chicago and a Trump appointee, to conduct an initial inquiry.
Garland reportedly picked him for the role despite him being in a different jurisdiction to avoid appearing partial.
Lausch has reportedly finished the initial part of his inquiry and provided a preliminary report to Garland.
If a criminal investigation is opened, Garland will likely appoint an independent special counsel to lead it.
The case mirrors a similar DoJ special counsel investigation into former President Donald Trump’s alleged mishandling of classified materials and obstruction of efforts to properly retrieve them.
On Nov. 18, Garland appointed Jack Smith to investigate over 300 classified documents found at Trump’s Florida residence, Mar-a-Lago.
Trump resisted multiple National Archives requests for the documents for months leading up to the FBI’s raid on his property, then handed over 15 boxes of files only for even more to be found still at Mar-a-Lago.
“When is the FBI going to raid the many houses of Joe Biden, perhaps even the White House?” Trump wrote on Truth Social Monday. “These documents were definitely not declassified.”
Rep. James Comer (R-KY), the new chairman of the House Oversight Committee, told reporters he will investigate the Biden files.
Republicans have been quick to pounce on the news and compare it to Trump’s classified files, but Democrats have pointed out differences in the small number of documents and Biden’s willingness to cooperate with the National Archives.
The White House has yet to explain why, if the files were first discovered six days before the midterm elections, the White House waited two months to reveal the news to the public.
See what others are saying: (CNN) (The New York Times) (BBC)
Lawmakers Propose Bill to Protect Fertility Treatments Amid Post-Roe Threats
The move comes as a number of states are considering anti-abortion bills that could threaten or ban fertility treatments by redefining embryos or fetuses as “unborn human beings” without exceptions for IVF.
The Right To Build Families Act of 2022
A group of Democratic lawmakers introduced a bill Thursday that would codify the right to use assisted reproductive technologies like in-vitro fertility (IVF) treatments into federal law.
The legislation, dubbed the Right To Build Families Act of 2022, was brought forward by Sens. Tammy Duckworth (D-Il) and Patty Murray (D-Wa.) alongside Rep. Susan Wild (D- Pa.). The measure would bar any limits on seeking or receiving IVF treatments and prohibit regulations on a person’s ability to retain their “reproductive genetic materials.”
The bill would also protect physicians who provide these reproductive services and allow the Justice Department to take civil action against any states that try to limit access to fertility treatments.
The lawmakers argue it is necessary to protect IVF because a number of states have been discussing and proposing legislation that could jeopardize or even ban access to the treatments in the wake of the Roe v. Wade reversal.
“IVF advocates in this country today are publicly telling us, ‘We need this kind of legislation to be able to protect this,’” Murray told HuffPost. “And here we are after the Dobbs decision where states are enacting laws and we have [anti-abortion] advocates who are now starting to talk, especially behind closed doors, about stopping the right for women and men to have IVF procedures done.”
Fertility Treatments Under Treat
The state-level efforts in question are being proposed by Republican lawmakers who wish to further limit abortions by redefining when life begins. Some of the proposals would define embryos or fetuses as “unborn human beings” without exceptions for those that are created through IVF, where an egg is fertilized by a sperm outside the body and then implanted in a uterus.
For example, a bill has already been pre-filed in Virginia for the 2023 legislative session that explicitly says life begins at fertilization and does not have any specific language that exempts embryos made through IVF.
Experts say these kinds of laws are concerning for a number of reasons. In the IVF process, it is typical to fertilize multiple eggs, but some are discarded. If a person becomes pregnant and does not want to keep the rest of their eggs. It is also normal that not all fertilized eggs will be viable, so physicians will get rid of those.
Sometimes doctors will also implant multiple fertilized eggs to increase the likelihood of pregnancy, but that can result in multiple eggs being fertilized. In order to prevent having multiple babies at once and improve the chance of a healthy pregnancy, people can get a fetal reduction and lower the number of fetuses.
All of those actions could become illegal under proposals that do not provide exemptions.
“In my case, I had five fertilized eggs, and we discarded three because they were not viable. That is now potentially manslaughter in some of these states,” said Duckworth, who had both of her daughters using IVF.
“I also have a fertilized egg that’s frozen. My husband and I haven’t decided what we will do with it, but the head of the Texas Right to Life organization that wrote the bounty law for Texas has come out and specifically said he’s going after IVF next, and he wants control of the embryos,” Duckworth added.
In a hearing after Roe was overturned, Murray also raised concerns about “whether parents and providers could be punished if an embryo doesn’t survive being thawed for implantation, or for disposing unused embryos.”
Experts have said that even if anti-abortion laws defining when life begins do provide exceptions, it would be contradictory and confusing, so providers would likely err on the side of caution and not provide services out of fear of prosecution.
“[Abortion bans] are forcing women to stay pregnant against their will and are, at the very same time, threatening Americans’ ability to build a family through services like IVF,” Murray said in a statement to Axios. “It’s hard to comprehend, and it’s just plain wrong.”
The federal legislation to combat these efforts faces an uphill battle. It is unlikely it will be passed in the last few days of lame duck session, and with control of Congress being handed to Republicans come January, movement in the lower chamber will be hard fought.
Duckworth, however, told Axios that she will keep introducing the legislation “until we can get it passed.”
Hundreds of Oath Keepers Claim to Be Current or Former DHS Employees
The revelation came just weeks after the militia’s founder, Stewart Rhodes, was convicted on seditious conspiracy charges for his involvement in the Jan. 6 insurrection.
An Agency Crawling With Extremists
Over 300 members of the far-right Oath Keepers militia group claim to be current or former employees at the Department of Homeland Security, the Project on Government Oversight (POGO) reported Monday.
The review appears to be the first significant public examination of the group’s leaked membership list to focus on the DHS.
The agencies implicated include Border Patrol, Coast Guard, Immigration and Customs Enforcement, and the Secret Service.
“I am currently a 20 year Special Agent with the United States Secret Service. I have been on President Clinton and President Bush’s protective detail. I was a member and instructor on the Presidential Protective Division’s Counter Assault Team (CAT),” one person on the list wrote.
POGO stated that the details he provided the Oath Keepers match those he made in a sworn affidavit filed in federal court.
The finding came just weeks after Oath Keepers founder Stewart Rhodes was convicted on seditious conspiracy charges for his involvement in the Jan. 6 insurrection.
“Law enforcement agents who have associations with groups that seek to undermine democratic governance pose a heightened threat because they can compromise probes, misdirecting investigations or leaking confidential investigative information to those groups,” POGO said in its report.
In March, the DHS published an internal study finding that “the Department has significant gaps that have impeded its ability to comprehensively prevent, detect, and respond to potential threats related to domestic violent extremism within DHS.”
Some experts have suggested the DHS may be especially prone to extremist sentiments because of its role in policing immigration. In 2016, the ICE union officially endorsed then-candidate Donald Trump for president, making the first such endorsement in the agency’s history.
The U.S. Government has a White Supremacy Problem
Copious academic research and news reports have shown that far-right extremists have infiltrated local, state, and federal law enforcement agencies.
In May, a Reuters investigation found at least 15 self-identified law enforcement trainers and dozens of retired instructors listed in a database of Oath Keepers.
In 2019, Reveal from The Center for Investigative Reporting found that almost 400 current or former law enforcement officials belonged to Confederate, anti-Islam, misogynistic or anti-government militia Facebook groups.
The Pentagon has long struggled with its own extremism problem, which appears to have particularly festered in the wake of the U.S. invasions of Iraq and Afghanistan.
Nearly one in four active-duty service members said in a 2017 Military Times poll that they had observed white nationalism among the troops, and over 40% of non-white service members said the same.
The prevalence of racism in the armed forces is not surprising given that many of the top figures among right-wing extremist groups hailed from the military and those same groups are known to deliberately target disgruntled, returning veterans for recruitment.
Brandon Russell, the founder of the neo-Nazi group AtomWaffen, served in the military, as did George Lincoln Rockwell, commander of the American Nazi Party, Louis Beam, leader of the KKK, and Richard Butler, founder of the Aryan Nation.
In January, NPR reported that one in five people charged in federal or D.C. courts for their involvement in the Capitol insurrection were current or former military service members.