Still, this should be an easy case for the conservatives, who regularly profess their allegiance to the plain language of laws. If they are nevertheless inclined to read that language narrowly, they might heed the words of their hero, Justice Antonin Scalia, who wrote the opinion for a unanimous court in 1998 that Title VII applies to cases involving harassment between members of the same sex. While Congress may not have been picturing such incidents in 1964, Justice Scalia wrote, “statutory prohibitions often go beyond the principal evil to cover reasonably comparable evils, and it is ultimately the provisions of our laws rather than the principal concerns of our legislators by which we are governed.”
This term, the court also will hear a challenge to President Trump’s decision in 2017 to reverse President Barack Obama’s 2012 executive order protecting undocumented immigrants who were brought to the United States as children — the roughly 700,000 young men and women known as Dreamers.
Mr. Obama implemented the program, Deferred Action for Childhood Arrivals, or DACA, as a way to protect some of the most vulnerable undocumented immigrants in the nation, and he did it only after Congress repeatedly failed to pass any meaningful immigration reform. Mr. Obama claimed that he was using well-established presidential discretion to decide how to enforce immigration laws and to prioritize the deportation of certain people and not others, like the Dreamers.
This put the Trump administration in a bind. On the one hand, Mr. Trump rose to power on an anti-immigrant platform, and his supporters are hungry to see him carry that out. (He’s also eager to erase every accomplishment of Mr. Obama’s.) On the other hand, the Dreamers are a sympathetic group of young people, as Mr. Trump has acknowledged, and Americans broadly support their being able to stay in the only country that many of them have ever really known.
Had Mr. Trump simply said that he was rescinding DACA because he did not think it was a wise policy, he would have been on firmer legal ground. But because he was afraid of taking responsibility for destroying the Dreamers’ lives, Mr. Trump is trying to pass the job off to the Supreme Court by arguing that DACA was an illegal exercise of authority from the start.
That’s simply wrong — not to mention suspicious coming from an administration that claims to have broad authority in other immigration contexts. It also makes the case harder for Mr. Trump at the Supreme Court because he did not adequately explain his reasoning, as is required when reversing a previous administration’s position. When the justices hear this case in November, they ought to tell the president that if he wants to kill off a popular program, he’ll need to look the American people in the eye and own it.
The way the justices handle two other high-profile cases — on guns and abortion — could reveal just how far and fast the court’s new conservative majority is willing to go to implement its vision for America.