In a Supreme Court ruling released this week, the nation’s highest court upheld the Deferred Action for Childhood Arrivals (DACA) program, which the Trump administration had tried to end. The program features protections for undocumented immigrants who arrived in the U.S. as children. The majority on the court ruled that the government had violated the Administrative Procedure Act (APA), insisting that the government’s attempted dismissal of the DACA program had been “arbitrary and capricious.” In the court majority’s ruling, Chief Justice John Roberts, a Bush appointee, bluntly criticized the Trump-appointed Justice Brett Kavanaugh for suggesting that the Administrative Procedure Act doesn’t even apply to the conduct of government agencies.
Brett Kavanaugh, who sided in favor of deporting DREAMers, remains who we always knew he was.
— Brian Fallon (@brianefallon) June 18, 2020
In short, Kavanaugh appears to have been himself trying to arbitrarily apply the law in ways that would benefit the Trump administration. Roberts noted that although the law has been used to outline what kinds of arguments from lawyers are acceptable, that doesn’t mean that the law doesn’t still mandate what kind of conduct is and is not permissible from government agencies.
It's been a good week for Justice in the Supreme Court. But for everyone in Maine, don't forget @SenatorCollins vote for Brett Kavanaugh put someone on the court who will always be on the wrong side of history, just like Collins.
— Joe Lockhart (@joelockhart) June 18, 2020
‘Justice Kavanaugh asserts that this ‘foundational principle of administrative law’… actually limits only what lawyers may argue, not what agencies may do. While it is true that the Court has often rejected justifications belatedly advanced by advocates, we refer to this as a prohibition on post hoc rationalizations, not advocate rationalizations, because the problem is the timing, not the speaker. The functional reasons for requiring contemporaneous explanations apply with equal force regardless whether post hoc justifications are raised in court by those appearing on behalf of the agency or by agency officials themselves.’
In other words, the point of the law is still that government agencies are not permitted to engage in “arbitrary and capricious” rulemaking, no matter what other applications that the law may have.
‘Justice Kavanaugh further argues that the contemporaneous explanation requirement applies only to agency adjudications, not rulemakings. But he cites no authority limiting this basic principle — which the Court regularly articulates in the context of rulemakings — to adjudications. The Government does not even raise this unheralded argument.’
When the administration responsible for Kavanaugh’s place on the court doesn’t even raise the same argument that he does — he’s pretty surely gone far off the edge.