[U] New DACA Applications Must Be Accepted In 90 Days; Muslim Ban 3.0 At The Supremes In A Few Hours...

UPDATED AT LUNCH: For the first time in their history, the Supremes have made a full audio recording available of an oral argument, within an hour, actually. Listen for yourself, but as expected, Justice Kennedy often asks very pointed questions of the Ginsburg-Kagan-Sotomayor position (i.e., the "GKS Wing") -- then sides with them, in the decision -- that's my bet. [In an astonishing breach of protocol, Mr. Francisco, for Mr. Trump repeatedly interrupted Justice Kagan. That is reflective of this administration's hubris.]

The proscriptions of the 1965 INA Johnson amendments will be key, in my view -- and Justice Gorsuch will (as he did earlier, on another immigration statutory issue, last week) side with the GKS Wing -- and say those Congressional Section 1152 amendments ("no discrimination, based on nationality, in visas" -- signed by President Johnson, under the shadow of the Statue of Liberty) meant what was written -- and have never been repealed. [End, updated portion.] I'll offer my live thoughts here, as the stream unfolds.

But until then, when Until "Oyez, Oyez. . ." is cried out -- I'll link to the latest trial court level victory (a 60 page PDF out of the USDC for DC) on DACA (backgrounder, here) for those who still believe the founders, George Washington in particular, fully meant to be a welcoming nation, to immigrants.

. . . .[W]here an agency asserts that a non-enforcement policy is unlawful and then asserts “litigation risk” as a separate ground for the policy’s rescission, there are reasons to be more suspicious. After all, if an agency could insulate from judicial review any legal interpretation simply by framing it as an enforcement policy and then offering as an additional, “discretionary” justification the assertion that a court would likely agree with the agency’s interpretation, then Crowley would be a dead letter.

Moreover, because such an assertion would depend (at least in part) on the correctness of the agency’s view of the policy’s unlawfulness, it would be unlike the independent discretionary ground that triggered the presumption of unreviewability in Chaney itself. See 470 U.S. at 824–25 (noting the FDA’s statement that even if it had jurisdiction, it would still decline to act pursuant to its “inherent discretion to decline to pursue certain enforcement matters”). For these reasons, litigation-strategy justifications deserve closer scrutiny when they are accompanied by agency assertions of unlawfulness. . . .

In concluding that DACA was implemented “without statutory authority,” neither the Sessions Letter nor the Rescission Memo cited any statutory provision with which DACA was in conflict. Cf. Encino Motorcars, 136 S. Ct. at 2127 (rejecting as inadequate an agency’s statement that a particular statutory exemption “does not include [certain] positions and the [agency] recognizes that there are circumstances under which the requirements for the exemption would not be met”). . . .

And so, DACA dreamers may begin to apply, as a matter of first instance, now in 89 days' time. Onward -- with hope -- "yes, we can." Smile. . . .

नमस्ते