Supreme Court Appointments in Presidential Election Years: The Case of John Hessin Clarke

Academic researchers and commentators have drawn attention to the potential link between heightened uncertainty experienced in a presidential election year and slower real economic activity. Our analysis looks at some of the key economic variables typically used by the NBER to date business cycles and compares the performance of these economic indicators between presidential election and non-election years since 1960. Our results suggest that the general argument that uncertainty during presidential election years results in slower economic activity does not hold water. In fact, based on our analysis, we find that several measures of economic activity are actually stronger during presidential election years.

Selecting Justice: Strategy and Uncertainty in Choosing Supreme Court Nominees: Christine L. Nemacheck

Memorandum on Supreme Court Vacancies and Confirmations During Presidential Election Years

Conservation invokes a range of policy issues including questions of economics, recreation, public good, stewardship, and governance obligations. When U.S. legislators consider creating new National Park units, interrelated policy issues influence decisions about whether to support or oppose a new site. In this article, we explored the influence of electoral competition, political party in control, and presidential election year on the number of new National Park units created between 1934 and 2014. Electoral competition theory hypothesizes that as the congressional majority margin decreases (gets more competitive), politicians act in more strategic and less partisan ways. In this analysis, high electoral competition occurred if the party in power had less than a 55% majority; low electoral competition was defined as a 55% or more majority. Three conditions of political control were also examined: (a) Democrats controlled the Presidency and the House, (b) Republicans controlled the Presidency and the House, and (c) shared party control (one party controlled the Presidency and the other party controlled the House). The effect that presidential election years had on the number of new park units created was also considered. Results indicated that more park units were created during periods of low electoral competition (M = 5.00) than high electoral competition (M = 2.04), F (1, 79) = 7.24, p = .009, ? = .084 (Hypothesis 1). In addition, there was evidence of partisanship (Hypothesis 2). When Democrats controlled both the Presidency and the House, an average of 5.55 new park units were created annually. When political control was shared, an average of 3.34 park units were created per year, and when Republicans were in control only one park unit on average was created annually, F (2, 78) = 3.54, p = .034, ? = .289. More park units were created in presidential election years (M = 5.02), than nonpresidential election years (M = 2.06), F (1, 74) = 2.32, p = .024, ? = .259 (Hypothesis 3). There was no evidence of interaction effects among the variables (contrary to Hypothesis 4). This research contributes to the existing literature on the development and growth of the National Park System by analyzing the role of electoral competition, political control, and presidential election years as they effect the creation of new National Park units.Subscribe to JPRA

In the Senate proceedings on Amy Coney Barrett’s nomination to the Supreme Court, Senate Democrats (and at least two Republicans) claimed that a confirmation of Supreme Court Justice in a presidential election year would be a break with Senate tradition—a violation of the mythologized “Thurmond Rule.” Named for Senator Strom Thurmond, the scope of the rule and its origins are murky. The rule likely originated in Thurmond’s campaign against President Jimmy Carter’s judicial nominees of 1980, when Thurmond served as ranking minority member of the Senate Judiciary Committee. This article discusses the Supreme Court confirmation process, Barrett’s background and nomination, the speed with which she was confirmed to the nation’s highest Court, and the conclusion of the nonpartisan Congressional Research Service on whether the Thurmond Rule truly exists. Senate Minority Leader Charles Schumer declared the Barrett confirmation a “blatant act of bad faith” by the Republican majority in the Senate, which in 2016 invoked the Thurmond Rule to defer Senate action on President Barack Obama’s nomination of Merrick Garland to the Supreme Court. As detailed by the Congressional Research Service, the Thurmond Rule has been invoked inconsistently by both parties at politically convenient times.

In 2016, the Republican-held Senate refused to hold a hearing on President Barack Obama’s nominee, Merrick Garland, sparking outrage among the Democratic Party. Then-Senate Majority Leader Mitch McConnell justified his party’s actions based on what became known as the “McConnell Rule.” This controversial rule holds that during years of presidential elections, when the president and the Senate majority are of different parties, the Senate is not expected to confirm the president’s Supreme Court nominees; but, when the president and Senate majority are of the same party, vacancies may be filled. When the Senate applied this rule in 2020, the stakes were even higher. Revered liberal stalwart Justice Ruth Bader Ginsburg passed away only 46 days before the 2020 presidential election. Invoking the McConnell Rule, the Republican-held Senate moved forward with the confirmation of President Trump’s nominee Amy Coney Barrett. This contentious move again infuriated Democrats, and the presidential campaign. Now that Justice Barrett has been appointed and the presidential election has passed, it is useful to look back on the history of Supreme Court nominations during presidential election years. Such a review suggests that the so-called McConnell Rule is rooted in valid historical precedent. In fact, viewed in light of American history, even a Trump lame duck nomination and confirmation would have been valid. This blog post argues that the Senate should distill this historical precedent into an explicit Rule of the Senate that will govern the chamber going forward. The rule should obligate the Senate to either (1) hold a vote to confirm the election-year or lame duck nominee, or (2) hold a vote to postpone action on the nomination. If a vote to postpone action on the nomination fails, the rule should then compel the Senate to hold a vote to confirm the nominee. Such a rule removes all doubt about the Senate’s authority to act or refuse to act on election-year and lame duck nominees, exposes unfounded threats of retaliation by minority parties, and best conforms to the Constitution.

This note examines the effects of presidential elections on congressional elections. Nationally aggregated congressional seat and vote change data for the 61 congressional elections held in presidential and midterm election years from 1868 to 1988 are examined in a single-equation model. The results indicate strong presidential "surge and decline" effects. In presidential election years, a party's presidential vote positively affects its congressional election results--the presidential surge. In the following midterm elections, the president's party loses the advantage of the presidential surge and, as a consequence, also loses congressional votes and seats. These midterm losses of congressional seats and votes for the president's party are in proportion to the party's prior presidential vote margin. Presidential surge and decline effects, however, do not entirely explain vote and seat losses by the president's party in midterms. In addition to suffering vote and seat losses because of the absence of presidential coattail or surge help, it appears that the president's party also sustains midterm losses because of the public's evaluation of the incumbent administration at the midterm.

For a long time, people can not understand the so-called ＂immigrant paradise＂ of why the United States can not tolerate ＂illegal immigrants＂, especially from Mexico's neighbors? So when the presidential election year, the two party camps inevitably controversial deportation or amnesty policy line, exciting offense and defense will continue to appear in the news media in the United States each layout. On the Historical Institutional Perspective, subject of immigration issues are ＂people＂, the variable is ＂time＂, the so-called ＂We know the future from the past＂, via analysis of past event of time series, it is possible to handle the policy path dependence and future change. 2015, President Obama is promoting the ＂Dream Act＂ allows execution immigrants assimilate into American social policy quite frustrating year, New Orleans Fifth Circuit Court of Appeals ruling against Obama's executive orders Administrative Reform. 2016 coincides with the US presidential election, the purpose of this paper is that the use of historical institutional perspective analysis of the US government ＂to strengthen the expulsion of illegal immigrants Action＂ has not connected between the ＂election year＂? Meets historical institutional theory ＂path dependence＂ concept? And predict its future tendency. This paper fond that the expulsion of illegal immigrants Action time series with the presidential election in quite match. After that, the 1960s is the path of consolidation period; 1970s is the decline period; But in 1981, the new path is ＂amnesty for illegal immigrants, local legalization＂. It was President Reagan responded positively to the new long-term domestic mainstream public opinion best of both worlds ＂anti-illegal immigration＂, but also established a policy fence ＂border control＂ as the amnesty route supporting measures. This boundary is like a wall, so that policies advocated amnesty voices never been able to cross with the formation of the election ＂accompanies effect＂ greatly narrow down the amnesty path-dependent development. Today President Obama consuming eight years to promote a ＂DREAM Act＂ fails, just to prove that ＂border control＂ for amnesty fence route path dependence limits the presidential election and expulsion route ＂accompanied effect＂ of the self-reinforcing effect, the system really is ＂ choice ＂ out, rather than being ＂design＂ out.

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We examine whether policy uncertainty triggered by presidential elections pushes the future back by reducing the extent to which current prices reflect information about future earnings. We estimate future earnings response coefficients (FERCs) for the years 1975–2013, a period that covers ten presidential elections. We find that FERCs are significantly lower (by 11.8%) during presidential election years compared to other years. Additional analyses using pseudo election years, ex‐ante polls, contract prices from the Iowa Electronic Political Market, and cross‐sectional firm characteristics provide corroborating evidence that the lower FERCs during election years are related to policy uncertainty. We also investigate potential explanations for the lower FERCs during election years. We find that the lower FERCs relate to forecasting difficulty rather than to changes in the discount rate or in the amount of noise trading. Finally, we find that market prices move toward future earnings to a greater degree during presidential election years compared with other years once the policy uncertainty is resolved. A trading strategy based on this drift yields significant abnormal returns. Overall, we contribute to the literature by providing the first empirical evidence that shocks to policy uncertainty influence the pricing of earnings information.

Reviewed by: The Chief Justiceship of William Howard Taft, 1921–1930 by Jonathan Lurie John Thomas McGuire The Chief Justiceship of William Howard Taft, 1921–1930. By Jonathan Lurie. Chief Justiceships of the United States Supreme Court. (Columbia: University of South Carolina Press, 2019. Pp. xiv, 255. $49.99, ISBN 978-1-61117-987-3.) It is easy to remember the legal groundbreakers who served as chief justice of the United States Supreme Court, such as John Marshall and Earl Warren. More difficult is considering chief justices who made substantial, if not Newtonian-like, contributions to U.S. legal history. In 1970 constitutional scholars and legal historians ranked William Howard Taft, holder of the office from 1921 through 1930, as “near great,” according to Henry J. Abraham (Justices, Presidents, and Senators: A History of the U.S. Supreme Court Appointments from Washington to Bush II [Lanham, Md., [End Page 510] 2008], p. 374). Even so, scholars still tend to see Taft more as the reluctant United States president, not as the surprisingly crafty chief justice. This new book by Jonathan Lurie demonstrates why Taft deserves his judicial reputation, and it strikes an admirable balance between an individual assessment and an explanation of historical context. The two major strengths of The Chief Justiceship of William Howard Taft, 1921–1930 lie in its persuasive demonstration of both Taft’s political shrewdness and his collegial stewardship of his eight fellow justices. Taft not only lobbied his fellow Ohioan and recently elected president Warren G. Harding to appoint him chief justice in 1921, but Taft also influenced Harding’s subsequent Supreme Court appointments, particularly that of Taft’s old friend (and the more legally influential justice) George A. Sutherland. In addition, Lurie shows how Taft crafted a successful strategy for the passage of the Judiciary Act of 1925, or Judges’ Bill, which granted the nation’s highest court its right to determine cases by writ of certiorari. While the bill presented no controversy, Taft carefully relied on a coalition of justices to testify before Congress how the new method could preserve principles of efficiency and equity. Moreover, despite his increasing ill health after the mid-1920s, Taft still played a considerable part in garnering federal appropriations for the current Supreme Court building. Lurie also demonstrates how Taft preserved substantial majorities for Supreme Court decisions through a mixture of outward affability and well-placed pressures. The chief justice tolerated Oliver Wendell Holmes Jr.’s penchant for dissent, in return for his colleague’s eagerness to write majority opinions, and Louis Brandeis’s legally scrupulous, if sometimes lengthily written, objections. Taft’s successful relationship with Brandeis becomes more remarkable when one considers Taft’s vociferous opposition to Brandeis’s confirmation in 1916. Taft even maintained civility with the notoriously disagreeable and inept James C. McReynolds. As Lurie shows, Taft’s great administrative successes as chief justice lay partially in his pleasure in serving as a federal judge and partially in a diverse career of legal administrative expertise, including service as the solicitor general of the United States and on a federal appellate court. Despite the overall positive assessment of Taft’s chief justiceship, Lurie also shows how Taft adopted a King Lear–like persona in his later years on the Court, as he sensed future difficulties with his beloved conservative legal classicism. Taft privately denounced Holmes, Brandeis, and new colleague Harlan Fiske Stone in 1929 as “‘Bolsheviki,’” a sad reminder of how personal difficulties can trump professional considerations (p. 208). This reviewer must note two caveats. Epigrammatic Holmes certainly was, but the constant use of the word becomes a bit wearying. Additionally, while the explanations of the Taft Court’s jurisprudential breakthroughs are enlightening, one sometimes feels lost in the sea of details. Still, The Chief Justiceship of William Howard Taft is an exemplary effort that demonstrates how Taft made his mark as an excellent, if not great, chief justice of the United States. [End Page 511] John Thomas McGuire Siena College Copyright © 2020 The Southern Historical Association

De-Politicization of the Supreme Court Nomination Process: A Practical Plan for Temporary Court Expansion

A critique of previous studies that attempt to establish a causal relationship between a decline in mortality and suicide rates and presidential elections in the United States is presented. "This work argues that the previous studies are flawed both methodologically and theoretically. By comparing suicide and mortality rates in presidential election years with rates in adjacent years the studies fail to examine all the information in their data set and consequently are unable to control for other relevant variables." The author notes that previous studies have shown "that the unemployment rate is significantly related to the suicide and mortality rates and the rate of unemployment tends to be relatively low in September and October of presidential election years. Employing monthly suicide and mortality data between 1903 and 1977 and using multivariate time-series analysis it is found that when variations in the unemployment rate are controlled no significant relationship exists between presidential elections and suicide and mortality rates. The results of this study demonstrate that the presidential death-dip hypothesis is incorrect." (EXCERPT)

Previous articleNext article FreeReading Regents and the Political Significance of LawCristina M. RodríguezCristina M. Rodríguez Search for more articles by this author PDFPDF PLUSFull Text Add to favoritesDownload CitationTrack CitationsPermissionsReprints Share onFacebookTwitterLinked InRedditEmailQR Code SectionsMoreWhen the Supreme Court handed down its decision in Department of Homeland Security v. Regents of the University of California, in June 2020, advocates celebrated. DACA—an acronym that no longer requires definition—lived to see another day.1 Newspaper headlines marked the decision as a decisive rebuff of the Trump administration’s efforts to end the Obama-era program that shielded so-called Dreamers from deportation while authorizing them to work in the United States.2 Initiated in 2012, the Deferred Action for Childhood Arrivals program had survived almost four years of a presidential administration overtly hostile to immigrants and immigration—a government bent on unraveling as much of the administrative and political legacy of its immediate predecessors as possible.3 The Supreme Court largely affirmed the Ninth Circuit’s holding that efforts by the Department of Homeland Security (DHS) to rescind DACA were arbitrary and capricious and therefore invalid, sending DHS back to the drawing board to accomplish its objectives.4 With the 2020 presidential election less than five months away and the very real possibility of regime change in the air, the decision seemed decisive. The Supreme Court had saved DACA, at least for the time being.On the other side of the presidential election, we can now say that the Dreamers and their lawyers succeeded in using the courts to run out the clock on one of the more high-profile efforts of the Trump presidency. This success calls for an explanation. The original legal theory of DACA was predicated on its discretionary and therefore defeasible character. The government justified DACA as a series of individual acts of prosecutorial discretion, defined as the inherent discretion law enforcement officials possess to forbear from enforcement, at their convenience, in order to prioritize enforcement resources. DACA’s founding document—a memorandum issued by the Secretary of Homeland Security—included the disclaimer standard in Executive orders and agency guidance documents: “this memorandum confers no substantive right.”5 DACA’s promise, then, lasted as long as the Executive wanted it to. The promise was durable as long as President Obama remained in office but unenforceable should the Executive branch fall into the hands of officials hostile to the program.Given the apparently weak anchor DACA provided, why was it so difficult for a new administration, whose enforcement priorities did not include categorical forbearance for Dreamers, to reorient the enforcement system in its preferred direction? A conventional answer, repeated as a description of many of the Trump administration’s stumbles across regulatory arenas, was that officials were incompetent, sloppy, and disingenuous. The myriad court opinions in the DACA rescission litigation of the Trump years, from across the country and up and down the judicial hierarchy, reflected a version of this thesis. No court concluded that DACA was required by law. All parties, including the Supreme Court, seemed to agree that an administration could end the program.6 But despite efforts to respond to the demands and criticisms of the lower courts, the Trump administration could not find its way to its desired conclusion.But if the Court has implicitly acknowledged that DACA is not legally required and expressly stated that the government has the authority to wind it down, in what sense was Regents a major victory? In this essay, I argue that Regents is not a triumph in immigration law or even a decision of immigration law; far from it, the opinion contains a roadmap to DACA’s demise. The decision’s salutary outcome for immigrants also distracts us from a more ominous turn in the Roberts Court toward a reading of the immigration laws that empowers both Congress and the President to do as they please—a reading exemplified by one of the Term’s other decisions, Department of Homeland Security v. Thuraissigiam, in which the Court rejects a Suspension Clause challenge to expedited removal proceedings.7Regents does reflect a kind of political triumph, however, not just because DACA was saved but because the Court calls attention to the profound interests its recipients have in remaining in the United States and thus to their new social status, separate and apart from their legal status. And yet, within the Regents decision itself, as well as in the legal claims made against the Trump administration, are the very tools with which courts might again stymie political change designed to advance immigrants’ rights, relying on the exacting procedural regularity championed in Regents by Chief Justice Roberts.I. The Trump Administration’s Failed RescissionChief Justice Roberts opened his opinion in 2012, at the moment of DACA’s inception. But to understand what DACA sought to achieve as a matter of administration, it is important to understand what it replaced. As most every court to have heard a DACA-related dispute has recognized, implicit in the operation of an immigration enforcement regime is the authority of Executive officials to set priorities for law enforcement agents. Those priorities can encourage agents to forbear from arresting or deporting otherwise removable non-citizens as part of a larger systemic interest in channeling resources toward removals in the government’s highest interests. Beginning in 2010, Obama-era DHS officials articulated a set of priorities in guidance documents (known as the Morton Memos) in an effort to encourage line-level officials to consider non-enforcement against certain types of individuals, including those who met the criteria that would eventually define DACA – the hundreds of thousands of non-citizens lacking immigration status who had been brought to the United States as youth.8 After two years of trying to steer the enforcement system with these exhortations, DHS officials determined that few obvious or publicly visible changes to enforcement practices had occurred. The Department’s political leadership, in conjunction with the White House, thus devised DACA to protect Dreamers from deportation. The program, adopted by what came to be known as the Napolitano memorandum, invited applications for forbearance from those who satisfied carefully drawn eligibility criteria, virtually ensuring, though not guaranteeing, protection and work authorization for Dreamers.9By the time President Donald Trump took office, more than 750,000 Dreamers had been granted DACA status,10 which provided them actual and psychological relief from removal and enabled them to enter the workforce and live as if their immigration status were immaterial. As a candidate, Donald Trump vowed to rescind DACA immediately, but in his initial months in office, President Trump himself expressed ambivalence and even reservations.11 In September 2017, however, Attorney General Jefferson Sessions sent a one-page, four-paragraph letter to Acting DHS Secretary Elaine Duke to “advise” that DHS should rescind the Napolitano memorandum initiating DACA on the ground that DACA was “an open-ended circumvention of immigration laws” and “an unconstitutional exercise of the authority of the Executive Branch.”12 The next day, in what had to have been a coordinated decision within the administration, Secretary Duke released her own memorandum terminating DACA,13 citing the Attorney General’s letter and the litigation that had called into question the legal authority for a second but now moribund Obama-era deferred action policy (Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA)).14 The timing and content of each of these two administrative documents became central to the Supreme Court’s resolution of the legal question before it—whether the Trump administration’s efforts to rescind DACA had been lawful.The court case began in three different circuits, where an array of plaintiffs raised numerous substantive claims, two of which ended up before the Supreme Court: that the rescission of DACA was arbitrary and capricious in violation of the Administrative Procedure Act and that the rescission violated the Equal Protection Clause of the Constitution. In its culminating opinion, the Supreme Court first concluded that DACA did not fall into the class of non-enforcement decisions long held to be unreviewable by courts on the authority of Heckler v. Chaney.15 DACA amounted, instead, to a full-blown program for granting immigration relief and attendant benefits, justifying judicial review—review that jurisdiction-stripping provisions of the Immigration and Nationality Act (INA) also did not preclude. The Court then proceeded to hold that the rescission of DACA in its entirety was indeed inconsistent with the requirements of the APA but that none of the plaintiffs’ allegations established a “plausible” claim of racial animus under the Equal Protection Clause.But DACA was a discretionary program that the administration should have been able to undo easily, not a program that should have survived more than three years of a concerted rescission effort (assuming Trump officials’ hearts were in it). Why did a clearly permissible outcome evade the Trump administration? Though incompetence has been charged repeatedly in public commentary, the explanations offered by Chief Justice Roberts underscore that the federal courts’ conceptualization of the administration’s fault changed throughout the litigation.In his letter to Secretary Duke, Attorney General Sessions justified the rescission as legally required, in part citing the litigation risk that maintaining the program posed, given that the Fifth Circuit had invalidated President Obama’s similarly structured DAPA initiative.16 At the time, Adam Cox and I argued that the administration was hiding behind flimsy legal arguments to duck political responsibility and accountability for ending a widely popular and successful program.17 The lower courts quickly put a stop to this evasion by demanding that the Trump administration provide reasons for the rescission beyond what the courts viewed to be erroneous legal claims.18 Judge John Bates in the District for the District of Columbia actually gave the administration an opportunity to remedy the APA violation by providing the court with a more extended rationale for the rescission.19 The administration obliged with a memorandum from a new DHS Secretary, Kirstjen Nielsen, in which she purported not to disturb the Duke memorandum and its legal conclusions but added multiple policy reasons to justify the rescission.20 By elaborating on its legal reasoning and offering a policy rationale for ending DACA that could justify the rescission if the court continued to find the legal reasoning wanting—just the sort of rationale courts typically do not second-guess—the path to rescission seemed to have been cleared.And yet, at the Supreme Court, the sufficiency of the Nielsen memo went untested. In its opinion, the Court dismisses the memo’s relevance because it had been framed as an elaboration of the Duke memo and yet bore “little relationship” to the original purported basis for the agency action.21 Under hornbook administrative law, then, the Nielsen memo constituted an irrelevant post hoc rationalization. In support of this conclusion, the Court lists the familiar case law, for which the standard citation is SEC v. Chenery Corp.22, and the reasons for rejecting an elaborated justification and insisting that the agency start a new policy process or issue a new decision to invoke new reasons: that such requirements promote accountability, ensure the parties and public can respond to the agency’s authority, preserve the orderly process of review, and constrain the agency from making its reasons and therefore its policy a moving target.23Thus focused on the Duke memo, the Supreme Court offers a two-part reason for finding the rescission procedurally flawed, each part of which I consider in more detail in Part II. The first is a legal rationale not yet hit upon by the federal courts but offered by the respondents from the District of Columbia: according to the Court, the Sessions letter had concluded that DACA was unlawful because it contained the same legal defects the Fifth Circuit had found in DAPA. Because the Fifth Circuit focused its analysis on the benefits DAPA conferred (primarily eligibility for work authorization), the Secretary failed to appreciate that the Sessions letter left her with discretion to decouple the two parts of DACA and consider whether its forbearance policy standing alone, without benefits, passed legal muster.24 The second of the Court’s rationales also sounds in basic administrative law—that when it changes a policy, an agency must consider the reliance interests engendered by that policy, not because those interests are necessarily legally dispositive, but because they are always substantively relevant.25 Leaving aside the puzzlement expressed by Justice Thomas in his partial dissent—why should these reliance interests matter if some or all of the program itself was without legal foundation?—the Court gave the administration two clear assignments on remand if it hoped to continue the rescission effort.With this move, Chief Justice Roberts found a political sweet spot for someone hoping not to take sides on the merits. He did not allow the rescission to proceed, but he also avoided concluding that DACA was lawful. He thus did not close the door to an eventual gutting of DACA through elimination of the path to work authorization that made it so valuable. But whether Regents amounts to a “win” depends both on whose perspective we take and the timeframe we adopt. In the months after the decision, DACA recipients had clearly triumphed. The story’s denouement unfolded in a courtroom in the Eastern District of New York. After Regents, the government did indeed return to the drawing board. Attorney General William Barr rescinded all DOJ authorities relevant to the case, including a 2014 memorandum from the Office of Legal Counsel elaborating why the much larger DAPA program was consistent with the INA and within the Secretary’s authority.26 At DHS, Acting Secretary Chad Wolf rescinded the Nielsen and Duke memoranda and styled his own memo as beginning the process of considering DACA anew. He pledged that, while DHS conducted its fresh process, the agency would honor existing DACA grants but would no longer adjudicate new or pending applications. In his memorandum explaining these steps, Acting Secretary Wolf acknowledged the reliance interests of existing DACA holders by repeating back the Supreme Court’s articulation of those interests. But he then offered: “[w]hatever the merits of these asserted reliance interests on the maintenance of the DACA policy, they are significantly lessened, if not entirely lacking” for those who had never received deferred action in the first place.27Litigants immediately challenged this new quasi-rescission. But rather than determine if DHS had properly adhered to the procedural path cleared by the Supreme Court, Judge Nicholas Garaufis found Wolf’s appointment to have been unlawful, thus invalidating his actions as lacking authorization—a conclusion reached by numerous courts reviewing various DHS actions in the waning days of the Trump administration.28 Whether DHS could correct this structural defect and try yet again to rescind DACA became moot with the election of Joseph R. Biden to the presidency in November 2020. Biden pledged during the campaign to shore up DACA. Not long after his inauguration, he followed through by declaring his intention to “fortify” the program.29But even though the election brought the rescission saga to an end, a deeper, more speculative strain of Regents is now in play. Despite being a procedural decision on its surface and in its holdings, Chief Justice Roberts’s novel reasoning forecasts still more legal wrangling over both DACA’s validity and, more generally, the capacity of a new president to chart a different path on immigration policy.II. Immigration and the Roberts CourtRegents ensured that DACA would survive into a new administration determined to preserve it. But the decision itself is neither a victory for immigrants’ rights in a jurisprudential sense nor a particularly probative data point in a more holistic account of immigration law in the Roberts era. Most immediately, the opinion provides a roadmap to DACA’s demise by inviting litigants and judges to separate its two pillars—categorical forbearance from removal on the one hand and eligibility for work authorization and benefits tied to deferred action status on the other—and to invalidate the latter. Beyond DACA, the prospects for a jurisprudence that restrains the coercive power of the government against non-citizens grew even dimmer this Term, despite Regents. In the unrelated decision, the Roberts Court yet another challenge to the of a enforcement and removal power expressly by what to be the Court’s from its of of the INA with a for basic process This opinion much less interest from the and public than the of DACA, but it is of far to the of immigration law first to DACA through the courts is its which the Regents Court to do As DACA was an exercise of the Secretary’s enforcement of typically from judicial The so-called benefits of DACA from the decision to forbear from removal in of and administrative back that those benefits to a of deferred it that the Obama administration deferred action as the through which to provide Dreamers some relief because of these legal discretion to an established regulatory with a and process by which recipients of forbearance could for authorization documents in various of the litigation over both DACA and the Supreme Court and the lower courts have the government’s across that the are unreviewable of enforcement In Regents, the Court to Heckler v. and its holding that the decision to to the law is not to judicial because it is to agency discretion, that is not a non-enforcement By an process to who met criteria, the administration a for immigration not a non-enforcement By DACA as a program with each to legal review, the Court thus the for the government by the of what the administration to accomplish in a way that more procedural and the of judicial despite finding DACA to be the Court does not to the of its parts on the merits. the Court fault with the Secretary’s own to decouple DACA’s two and then the and of a In finding this legally to the Secretary, Roberts is the Sessions letter to Secretary Duke, as the Chief Justice himself the Secretary’s in not clearly the Roberts and legal on DACA as a But Roberts on the that DACA policy has the same legal defects that the courts as to to chart his through the In the litigation over the Fifth in v. United had determined the relevant legal question to be whether the Secretary had authority to DAPA recipients for benefits, not whether he had authority to forbear from the class of who into the In other even under letter and the of litigation risk raised by the Fifth the Secretary could have a version of DACA. And under administrative v. agency to rescind a policy must consider in its whether the of the existing might be Because forbearance was at the very of DACA, DHS to have a policy of without and the Sessions letter did not that Regents opinion thus gave the Trump administration a a to DACA and for The agency could return to the drawing find the benefits to be legally while maintaining a policy, which it then could have out if it had articulated policy reasons for this of enforcement that took into account reliance interests on which And as in what out to be the waning months of the Trump administration, Chad Wolf the rescission process to a that the Court’s before Judge Garaufis found his authority the Court’s roadmap is no longer of to the administration But it does steer litigants of for to challenge DACA’s very down a clear path that the Court Despite not DACA’s the and reasoning of the Court’s opinion are both forbearance the of work authorization and other benefits is in This in part from the on by the Chief Justice of the Fifth Circuit’s reasoning in v. United which after a lower court decision an immigration relief program not actually at issue in Regents and that did not in a Supreme Court decision on the merits. be Attorney General Sessions put the Fifth Circuit opinion at issue by to on it in his DACA letter to the But not does Chief Justice Roberts v. United States and the of DAPA into his of the of the DACA he in an extended of the Fifth Circuit’s analysis when Secretary that she had no legal discretion to continue DACA. In his of the decision, Chief Justice Roberts up making a case for the of the And by that the Secretary consider this he is at the very least that it well be legally if not legally put if the Chief Justice it that a forbearance policy the legal it would have been for to the matter back to the agency for of an to the litigation over DAPA its not to raised the categorical forbearance it same legal Justice Thomas in his Regents opinion from the APA in which he Congress has not categorical to the removal But by the time the DAPA case had reached the Fifth that court seemed to have forbearance as a of the authority to prioritize removal for a court to the forbearance of DACA would be a of a very basic enforcement As Adam Cox and I have DACA is no less enforcement discretion for the of discretion to the Secretary and away from individual even as individual agents continue to that we have a presidential administration that to rather than wind down DACA, the central of in the Regents opinion into the courts the Biden administration to continue eligibility for work authorization other to recipients of deferred action under the DACA DACA’s to its on the to this Though a promise of forbearance the and psychological with the of eligibility for work authorization is what has made DACA for hundreds of thousands of non-citizens without legal status who are Chief Justice Roberts does not on the merits whether DHS has the authority to eligibility for work But he also does not take the of of the lower courts, which the Trump administration’s conclusion that DACA was He offers as an for the agency a that work authorization for being Sessions had but on with if the administration had through with such an and it had reached the Supreme Court a second time, Roberts and his upon would have in that of work authorization was After the making deferred action recipients to for back to the The administration would then have had to rescind or those after through and and why it was so – that, as even Justice recognized, would be no But would the Chief Justice have sent the Trump administration back for more memoranda he them to and for all up with articulated policy reasons for all of DACA, the for the Court to the of DACA on the the Court was to a decision on the the 2020 election have its the Biden administration has its intention to DACA through and This to more procedural to the program in the of it through what be a legal by the of and some of its in the District of where the who invalidated DAPA now on the and when DACA to the Court under this new no one should be if forbearance at the end, it to Congress to provide a anchor of for the The way the Chief Justice in Regents the work authorization question as for legal and the expressed by some of the at in the DAPA case back in justify the litigation risk with DACA as the Court does indeed to on a version of DACA, its decision Regents as an of the Court’s of administrative and an that Executive be by clear and even In so the Court would the of the Executive branch to and into its of a deportation regime that Congress thus far has been or to This of the Executive in the of accountability and the of would in turn another of immigration law that the Supreme Court but has been in years, including during the a of decisions over the years, the Court has the of its opinion in Regents, finding that DHS has power to to the immigration laws in of In at least two the Court rejects the of and on the political in that from And in other the Court provisions with to that would be of immigrants’ including in that in basic In other the real of the Roberts Court’s immigration jurisprudence has been to the political in with waning interest in the Executive the power Congress has to

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