[Congressional Record Volume 166, Number 113 (Thursday, June 18, 2020)]
[Senate]
[Page S3092]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]



                                  DACA

  Mr. CRUZ. Mr. President, today's decision from the U.S. Supreme Court 
in Department of Homeland Security v. Regents of the University of 
California is disgraceful.
  Judging is not a game. It is not supposed to be a game. But, sadly, 
over recent years, more and more Chief Justice Roberts has been playing 
games with the Court to achieve the policy outcomes he desires.
  This case concerned President Obama's Executive amnesty--amnesty that 
President Obama decreed directly contrary to Federal law. He did so 
with no legal authority. He did so in open defiance of Federal 
statutes. Of course, he was celebrated in the press for doing so.
  Obama's Executive amnesty was illegal the day it was issued and not 
one single Justice of the nine Supreme Court Justices disputed that--
not a one.
  Chief Justice Roberts wrote the majority opinion, joined by the four 
liberal Justices on the Court. This is becoming a pattern.
  The majority assumes that DACA--Obama's Executive amnesty--is 
illegal, and then bizarrely holds that the Trump administration can't 
stop implementing a policy that is illegal.
  Think about that for a second.
  In fact, it is even worse. The majority explicitly concede, of 
course, the administration can stop an illegal policy. ``All parties 
agree''--that is a quote--``all parties agree that DHS may rescind 
DACA.''
  OK. Easy. Everyone agrees. DHS can rescind DACA. Right?
  Not so fast. A clever little twist. The majority says: Do you know 
what? The agency's legal explanation wasn't detailed enough. Yes, you 
have the authority to do it. Everyone agrees. There is no argument that 
you don't have the authority to do it, but we are checking your 
homework and, you know, the memo you wrote explaining it just didn't 
have all the detail we need. Just a touch more, so start over.
  What is interesting is that is exactly the sleight of hand that Chief 
Justice Roberts did almost exactly a year ago today in another case 
where the Chief joined with the four liberals from the Court and struck 
down another one of the Trump administration's policies.
  In that case a year ago, the Commerce Department, which is charged by 
the Constitution with conducting a census every 10 years--the Commerce 
Department wanted to ask a commonsense question in the course of the 
census: Are you a citizen of the United States? That is a question that 
has been asked in nearly every census since 1820. It ain't that 
complicated, asking someone in the course of a census: Are you a 
citizen?
  But in today's politically fraught world, the Democratic Party has 
decided they are the party of illegal immigration, as is the press. And 
so what did John Roberts do a year ago? Same thing. He wrote an opinion 
saying: Of course, the Commerce Department has the authority in the 
census to ask if you are a citizen. Of course. We have done it since 
1820.
  For those who are math impaired, that is 200 years ago.
  Steadily since then, every 10 years, over and over and over again, 
but no, no, no, no--John Roberts, little twist of hand.
  Do you know what? The Commerce Department didn't explain their 
reasoning just clearly enough. We looked at their memo announcing it, 
announcing that they were making a policy decision that they have 
unquestioned legal authority to do, that the Bill Clinton 
administration had asked that question, but John Roberts and the four 
liberals are going to strike it down because they say it wasn't 
explained clearly enough.
  This is a charade. Last year, they pretended it was just about the 
agency could go back and do it again. They knew full well there wasn't 
time to do it again; that they had to start the census, and so they got 
the result they wanted. They didn't like, as a policy matter, asking 
this. There was no legal reason, no legal authority to strike it down, 
so they played a little game: Go back and start over. Of course, now we 
are doing the census without asking that question.
  That is the same game here today in DACA. They don't like the policy 
so they say: Just go back and do it over. Just give a little more 
explanation. Just start over. Everyone knows the game they are playing. 
They are hoping that in November, in the election, that there is a 
different result in the election; that there is a new administration 
that comes in that decides amnesty is a good thing, and so this sleight 
of hand is all about playing policy.
  Five Justices today held that it was illegal for the Trump 
administration to stop breaking the law. That is bizarre. The reasoning 
is because the Obama administration violated Federal immigration laws, 
for now--wink, wink, let's pretend, because that is what they are 
doing, is pretending--Trump has to continue violating the law and 
behaving illegally.
  Chief Justice Roberts knows exactly what he is doing. We saw earlier 
this week a decision rewriting title VII of our civil rights laws--
rewriting title VII, the prohibition on sex discrimination, on 
discrimination against women or against men, rewriting it to add 
``sexual orientation or gender identity.''
  Now, as a policy matter, there are a lot of people who support that. 
Indeed, legislation to do that has passed the House of Representatives 
twice. It has passed this body once. But the Court just rewrote it. The 
Court just engaged in legislation, plain and simple, as Justice Alito 
powerfully wrote in dissent.
  By the way, Chief Justice Roberts, again in the majority, assigned 
that majority. This is gamesmanship. Chief Justice Roberts knows 
exactly what he is doing. The fact that elites in Washington don't see 
a problem with illegal immigration doesn't answer the reality for 
millions of working men and women who do, and these kinds of games 
ultimately make a mockery of the rule of law. They make a mockery of 
the Constitution and Bill of Rights.
  It is the same legerdemain we saw Chief Justice Roberts do several 
years ago upholding ObamaCare, where, again, just with a little flip of 
the wrist, he changed a penalty into a tax. That is not clever; that is 
lawless.
  This decision today was lawless; it was gamesmanship; and it was 
contrary to the judicial oath that each of the nine Justices has taken

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