SPLIT DECISION: Supremes Deliver “Gut Punch” To Transgender Americans, But Give Another Round To Dreamers
By Paul Wickham Schmidt
United States Immigration Judge (Retired)
On Tuesday, a divided Supreme Court allowed a portion of Trump’s homophobic ban on certain transgender troops to go into effect. At the same time, they properly squelched the arrogantly disingenuous attempt by Trump and his “go along to get along” Solicitor General Noel Francisco to “expedite” review of lower court rulings that found that Trump, former Attorney General Sessions, and DHS acted lawlessly and without any apparent legal rationale in terminating the “DACA” program. In simple terms, decisions that required the Administration to follow the law.
Prior Solicitors General have sometimes balked at representing liars and presenting disingenuous arguments in behalf of their Government “clients.” (Actually, somewhat of a bureaucratic misnomer, because the “institutional client” is really the “People of the U.S.” who pay Government salaries, regardless of whether they are citizens or can vote.) Not this one, who seems to savor the opportunity to carry Trump’s more than ample “dirty water” and reduce the credibility of his one-respected office to around zero. As I predicted, nobody serves Trump without being tarnished.
For the LGBTQ community, it’s a horrible signal that a narrow majority of the Supremes are unwilling to move into the 21stcentury and recognize their Constitutional rights to equal protection under the 14thAmendment as well as their rights as human beings. It’s also shockingly disrespectful to those who have stepped forward to risk their lives in the name of our country, something Trump took great pains to avoid. It’s doubly disappointing that Chief Justice John Roberts joined his far-right colleagues on this one, at least in part (he rejected the bogus argument for immediate review put forth by Francesco and instead sent the case back to the lower courts for further development).
Unlike some of his colleagues on the right, Roberts has some sense of institutional history, the horror and existential dangers to democracy of Trump as Chief Executive, and the future. Come on, “Chiefie,” we can all get smarter as we get older! Don’t blow your chance to “get on the right side of history.” Leave the “Four Horsemen of the Apocalypse” behind in their dust and join your four more enlightened colleagues in moving America forward and showing some leadership and courage on the Supremes. As this month has shown, you might be the only person able to save America.
Paraphrasing what many pundits have said, “The Supremes can basically do anything they want, whenever they want to, for any reason they can come up with, because they are Supreme.” With that caveat in mind, the Court’s well-deserved slap down of Trump on DACA basically leaves the full protections in effect for Dreamers until the end of the Trump Administration. At that point, we’ll either get a new President, or there won’t be any country left for the “Dreamers,” the Supremes, or the rest of us to “dream about” or live in. The so-called “American Dream” will be at a tragic end. We’ll all be living in a continuing nightmare of cruelty, incompetence, and randomness.
I think the Supremes would be wise not to take up the DACA issue ever. It needs to be resolved by the lower courts, who have for the most part done a fine job, and the Congress, which hasn’t. But, assuming the Supremes do take the issue, they probably wouldn’t schedule argument before the October Term 2020. That makes it highly unlikely that they would reach and issue any final decision before the November 2020 elections. There would certainly be no reason for them to “rush to judgement” on this one.
Thus, Trump’s hollow offer of meager “Dreamer relief,” no path to green cards or citizenship and less than they have now under the court decisions, is even less of a legitimate “bargaining chip” than it was before. And, “poisoning the well” with Stephen Miller’s White Nationalist anti-asylum, child-abuse agenda shows how intellectually dishonest Trump and the GOP are and that the rancid “thousand pages of vile gibberish” that they launched as a “fake offer to reopen our Government” is a pure political stunt and an insult to 800,000 unpaid Government workers.
Moreover, all of this nonsense must be viewed in context of reality. That’s something that seldom intrudes on the daily intentionally created chaos and national dysfunction of this Administration. The Dreamers aren’t going anywhere! Almost all of them have legitimate applications for immigration relief that they can file in Immigration Court, including cancellation of removal, asylum, withholding of removal, or relief under the CAT.
Trump, Sessions, and now Whitaker have totally destroyed the U.S. Immigration Court system. I’m not sure it will be able to reopen even when the Trump shutdown finally ends. With a politically-created backlog of well over one million cases, growing by tens of thousands with every day of the mindless Trump shutdown, virtually no “Dreamer” (other than a minute percentage who might be convicted of crimes and probably would have had their DACA status revoked or denied on that basis) would be scheduled for removal proceedings within the next four years, let alone by 2020. Indeed, if Congress doesn’t step in and provide Dreamer relief and an Article I independent Immigration Court to replace the current dysfunctional mess in the DOJ, some of these cases may well still be pending a decade from now!
This context also reaffirms the total disingenuous absurdity of SG Francisco’s argument that this is an “emergency” requiring “early intervention” by the Supremes. Nothing could be further from the truth. The only “emergency” is the one intentionally caused by his “client” Trump — by illegally and unnecessarily trying to shut down the DACA program and aggravated by his Administration’s wanton destruction of our U.S. Immigration Courts, and by the “Trump shutdown.”
The Supremes must take a “hard line” against being “sucked in” to the many bogus “emergencies” that Trump creates to detract attention from his and his party’s inability to govern in even a minimally fair and effective manner. Perhaps, it’s also time for Francisco to reread the rule of ethics for lawyers and have a “heart to heart” with his “client” about abusing the Federal Courts with semi-frivolous litigation and presenting lies as “facts.” It’s never too late to learn!
PWS
01-23-19