News & Politics

'Sloppy' Policy Making, Not Ideology, Cost Trump Two SCOTUS Cases

In this March 3, 2006 file photo, members of the Supreme Court pose for a photo at the Supreme Court' Supreme Building in Washington. For most of the term, the justices showed restraint. They refrained from splitting in their usual ways, showed remarkable agreement even in some volatile areas, eschewed angry dissents. Then they decided the tough cases. Seated in the front row, from left to right are: Associate Justice Anthony M. Kennedy, Associate Justice John Paul Stevens, Chief Justice of the United States John G. Roberts, Associate Justice Antonin Scalia, and Associate Justice David Souter. Standing, from left to right, in the top row, are: Associate Justice Stephen Breyer, Associate Justice Clarence Thomas, Associate Justice Ruth Bader Ginsburg, and Associate Justice Samuel Alito Jr. (AP Photo/J. Scott Applewhite, File) (J. SCOTT APPLEWHITE)

The right has been up in arms over Supreme Court Chief Justice John Roberts voting with the liberal majority in overturning Trump administration policy on DREAMers and the citizenship question on the 2020 census. But Roberts wasn’t giving his opinion of DREAMers or citizenship questions. Roberts’ ruling was entirely consistent with the law; specifically the Administrative Procedure Act.

It could be argued that the APA saved the nation from Franklin Roosevelt’s dreams to turn America into a socialist nation. During the New Deal, the Democratic Congress created several new agencies — an alphabet soup of them that has since grown out of control.

But Republicans and conservative Democrats banded together to pass the APA, which essentially made it illegal for federal agencies to pass rules that did not meet certain administrative requirements, like sufficient time for the public to comment on the rules and their impact, as well as establishing uniform standards for the conduct of formal rulemaking and adjudication. Violation of these strictures are grounds for declaring the rule unconstitutional.

Without the APA, it’s likely that the number and scope of independent federal agencies would have turned the U.S. into either a dictatorship under the chief executive or a nation run entirely by out-of-control bureaucrats.


Thursday’s decision echoed a June 2019 ruling in which the court – Roberts again siding with the four liberal justices – faulted the administration’s plan to add a citizenship to the 2020 U.S. census.

Roberts wrote then that the administration had violated the same law, concluding that the stated rationale for adding the question “seems to have been contrived.” Critics said the question was intended to dissuade immigrants from taking part in the decennial population count.

In both 5-4 rulings, Roberts split from his four fellow conservatives and ruled against the administration on technical legal process issues without judging whether the actual policy was lawful.

Both the right and left use the APA to challenge controversial rules. Several of Barack Obama’s orders on immigration were challenged successfully on the grounds that the public was not consulted properly. And Trump’s bids to remake agencies like the EPA have fallen short because of “sloppy” procedures.

That’s apparently what happened here. But the same argument can be made on any rule passed by the government in the last two decades. Why has rulemaking procedure gone under the microscope?

Case Western Reserve University School of Law professor Jonathan Adler said that in some cases that Trump’s administration has lost, courts have adopted an “unduly rigorous standard” that makes it harder for the government to win. But, Adler added, “it’s also fair to say this administration has had its fair share of sloppy work.”

Trump’s administration has lost 79 out of 85 cases involving federal agencies on deregulatory or policy issues tracked by the Institute for Policy Integrity, a think tank connected to New York University School of Law.

So in the end, it appears that Roberts deliberately chose to use the APA to overturn the Trump administration rule on DREAMers. It may have been “correct” legally, but the other four conservative justices didn’t deem it important enough to adopt an “unduly rigorous standard” in interpreting the law.