Last month, DACA turned ten years old. Despite its vintage, the Supreme Court has never surrendered the legality of politics. Indeed, DHS v. Regents dismissed the issue entirely, finding that the Trump administration failed to make a case for ending DACA. (That precedent seemed outdated Biden v. Texas.) In Regents, I filed an amicus brief on behalf of the Cato Institute. We argued that DACA triggered the paramount question doctrine.
As I read through West Virginia v. EPA, my mind kept wandering to DACA. Much of the chief’s analysis of the Clean Air Act would apply to federal immigration law.
DACA contains a “presidential finding” of power to alter the general provisions of the INA—a change that Congress has repeatedly refused to legislate. The Chief Justice put some guardrails inside West Virginia:
According to our precedents, this is a big question case. Arguing that section 111(d) gives it the authority structural reform essentially US energy market, EPA claims[ed] Thu find in a long-standing statute, the “unheard of power” representing “transformative extension in [its] regulatory authorities.” Utility Air. It found that new power in vague language on “ancillary provision”.”law, Whitmanwhich was designed to function a gap filler and had rarely been used in previous decades. And the agency discovery allowed it to pass a congressional regulatory program visibly and repeatedly refused to realize himself. Brown & Williamson; Gonzales; Alabama Assn. Given these circumstances, there is every reason to be “hesitating before concluding that Congress intended to grant EPA the authority required by section 111(d). Brown & Williamson.
Finally, we cannot ignore it The EPA’s newly disclosed regulatory writing allowed it to conveniently implement a program thatlong after the dangers of greenhouse gas emissions “had become known, Congress considered and rejected” several times. Brown & Williamson; see also Alabama Assn.; The Bunte brothers (lack of previously unused authority “confirmed [agency’s] an unsuccessful attempt … to obtain an express grant from Congress [the challenged] authority”). Finally, the Clean Power Plan in principle approved a carbon cap-and-trade system or a set of state cap-and-trade systems. However, Congress has repeatedly rejected proposals The Clean Air Act is being amended to create such a program. It has also refused to implement similar measures, such as a carbon tax. The “importance of the issue” and the fact that the same basic system that the EPA adopted “has been the subject of frank and in-depth debate across the country, … makes the alleged delegation bias all the more suspect.” Gonzales.
Almost every clause in those paragraphs can be applied to DACA.
However, the “expertise” section cuts differently. The Court found that EPA lacks the expertise to create productive change. In contrast, DHS would have expertise on DACA. However, the court does not require a lack of relevant expertise to trigger the paramount issues doctrine. Justice Gorsuch acknowledged this point in his concurrence:
The dissent not only agrees that the conflict between the agency’s expertise and its disputed activity is relevant to the analysis of the paramount issues doctrine; dissent implies that such a conflict is necessary for the application of the doctrine. However, the court has never taken this position. Look, e.g, Brown & Williamson(drugs agency that regulates tobacco); King v. Burwell (2015) (tax agency administering the tax credit).
Finally, the DACA lawsuit hits the Fifth Circuit. West Virginia v. EPA plays an important role in that case.