Donald Trump’s lazy incompetence has defeated Donald Trump’s racism and bigotry—again. Last year, it was over his attempt to add a question about citizenship to the Census. This time, it was over his decision to end the Deferred Action for Childhood Arrivals program (DACA). The Trump administration keeps failing one of the easiest tests of policy-making in our country—basic competence—with the happy result that hundreds of thousands of people are now spared the threat of deportation.
In a 5-4 decision, the Supreme Court ruled earlier today that Trump’s attempt to end DACA was “arbitrary and capricious” under the Administrative Procedures Act (APA). Chief Justice John Roberts sided with the four liberal justices—Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor, and Elena Kagan—to rule against the president’s position. But while Roberts’s decision was a clear victory—and lifeline—for some 700,000 Dreamers, it’s also worth noting that he wrote the majority opinion in the most narrow way possible. Roberts’s opinion was similar to the opinion he wrote last year on the citizenship question; essentially, Roberts said the president can do whatever he wants—just not like this.
The only requirement the APA makes of the government is that it give a valid reason for its actions. It doesn’t require the government to have a “good” reason. It doesn’t require the government to be objectively correct in its reasoning. The APA simply requires the government to have a truthful and legally valid reason for doing whatever it is the government wants to do.
Trump’s stated reason—“Mexicans are criminals, drug dealers, rapists”—is not a valid legal reason. Racism is not a valid legal reason. I get that Trump and many Republicans think that a general dislike for brown foreigners is enough of a reason to do anything, but courts keep trying to tell them otherwise. Everybody, including Roberts, understands that bigotry and xenophobia are the real reasons behind Trump’s policies. And Roberts keeps indicating that he’s willing to overlook that—never forget that in Trump v. Hawaii (better known as the Muslim ban case) he allowed a squarely bigoted immigration change to go forward. All Roberts asks is that Trump gives him one facially valid reason for policies we all know to be motivated by racial animus.
But usually, Trump can’t. Trump’s consistent failure to clear the low bar of giving a non-bigoted cover reason for his policies would be comical if the stakes weren’t so serious. He’s like a child who keeps throwing their food on the floor instead of eating it, and then wonders why they’re hungry. Legally speaking, Trump doesn’t understand what his mouth is for.
And he won’t learn. Trump interpreted the Supreme Court ruling through the only lens his drooling narcissism allows him to: as a personal affront. He tweeted: “Do you get the impression that the Supreme Court doesn’t like me?”
But former acting solicitor general and Supreme Court savant Neal Katyal explained to me that Trump’s losses have nothing to do with Trump’s personality and everything to do with his administration’s incompetence: “Trump’s insinuation that the Supreme Court keeps ruling against him because it doesn’t like him is silly. They don’t like his arguments. A halfway normal administration could have ended DACA (or added a citizenship question to the Census) and made a decent case for it. But Trump and his minions are so incompetent, so brazen in their ignorance of the law, that they keep losing.”
Quite simply, Trump is not being held to an unfair standard. Any other administration that wanted to end DACA would have ended it. That’s because DACA is not an act of Congress. It’s not a constitutional principle or right. It’s an enforcement decision made by the previous president. The current president inherently has the power to reverse that enforcement decision. He just can’t reverse it because his only reason is that he doesn’t like brown people. It really is that simple.
That’s why this decision, while wonderful for the hundreds of thousands of Dreamers who were brought here by their parents, is also incomplete and vulnerable. Roberts could have protected Dreamers much more forcefully. Noted conservative lawyer Ted Olson argued this case in defense of DACA recipients, and he made two arguments: that the Trump administration violated the APA in its attempts to end DACA, and that the administration violated the equal protection rights of DACA recipients. Everybody is entitled to due process, and Trump’s actions deprived people of that right because of where they were from—and he all but said so. The equal protection claim would have protected Dreamers from future attempts by the Trump administration to end this program.
Roberts rejected the equal protection claim. Amazingly, while Roberts found that Trump may have acted with racial animus, he said he couldn’t find that Trump’s administration acted with that same animus when carrying out his orders. It’s a ludicrous proposition; then again, this is John Roberts. He’s not a moderate, and he’s not a friend. We know from his Muslim ban decision that Roberts is willing to give this administration multiple bites at the apples until they chomp upon a valid legal reason for their bigotry.
Justice Sotomayor highlighted this problem with Roberts’s ruling in her concurrence to the decision. She said that she would not have foreclosed the equal protection claim. She writes: “[T]he impact of the policy decision must be viewed in the context of the President’s public statements on and off the campaign trail. At the motion-to-dismiss stage, I would not so readily dismiss the allegation that an executive decision disproportionately harms the same racial group that the President branded as less desirable mere months earlier.” Sotomayor understands that a future administration might be just as racist but not as incompetent. The difference between Sotomayor and Roberts is that Roberts wants Trump to give him a better reason for being racist, while Sotomayor wants Trump to not be racist.
Roberts has not changed his mind since the Muslim ban. He has not had an epiphany about the evils of the Trump administration or the dangers of state-sponsored bigotry. He’s not becoming more moderate. He’s not, at all, becoming some kind of turncoat, as the far right would have you believe. He wants to support Trump and the Republican agenda just as much as he always has; he just doesn’t want to look gross and bad doing it. He doesn’t want his legacy sullied by the historical legal incompetence of this administration. That’s all.
That’s why DACA has not been “saved.” If Trump wins reelection this November, Roberts will surely let Trump try to end DACA again. Next time, Trump might succeed, in the same way that, given enough time and typewriters, a troupe of monkeys might someday write Hamlet.
Donald Trump is bad at his job. His incompetence is terrible for the country when it comes to pandemic prevention or economic resiliency or international trade or unity or sanity. But when he shows up to court, Trump’s incompetence is the only thing that saves us from him.
That’s a thin ledge to hang on to. If he wins in November, we’ll fully lose our grip.