John Roberts Wins a Stupid Prize
On Wednesday multiple media outlets reported that 21 Republican state attorneys general plan to sue the Biden Administration over the Keystone XL pipeline. They allege that the decision to cancel the pipeline is “arbitrary and capricious” and thus illegal under the Administrative Procedures Act.
The Republicans bringing the suit are basically arguing that Biden did not do the necessary paperwork. If that seems a bit silly, that is because it is. But, it is the exact same logic that Chief Justice John Roberts used to say that President Trump could not repeal DACA.
Thus, these attorneys general are playing hardball with Roberts, forcing him to live with his questionable rulings of the past. Roberts might be the loneliest man in America and it is his own fault. He played a stupid game when he upheld DACA and now Republican state attorneys general are awarding him his stupid prize.
If Roberts is consistent and rules in favor of those bringing suit against Biden, he infuriates progressives who, because they care more about policy outcomes than legal rules, will conveniently forget that he used the same logic to uphold a progressive priority and increase their calls for Biden and Senate Democrats to pack the Court.
If Roberts rules the other way, his inconsistency will infuriate conservatives who already believe that Roberts is a politician pretending to be a law man and a man who tries to appease liberals and journalists, but I repeat myself, dressed up as an institutionalist. It will confirm that there is one set of rules for the establishmentarian Biden and another for the outsider Trump, because Roberts will have ruled that some executive orders can be replaced with other executive orders, but others are treated as holy writ that can never be repealed.
Good luck try to explain why one is different than the other.
Practically, it will give a growing minority of conservatives more ammunition to argue against originalism in favor of a living and breathing Constitution, — they call it “common good originalism” — but unlike the liberals who want it to live and breathe to the left, it will live and breathe to the right.
If Roberts had just ruled that there is nothing sacred about DACA and Trump can repeal it, this suit likely does not happen. The idea that the president needs not only to prove the constitutionality of his actions, but also provide the Court with a dissertation showing how they crossed all their T’s and dotted all their I’s is nonsensical. But, Roberts’ desire to avoid having the Court be seen as politicized ends up politicizing the Court and that is why the Biden Administration now finds itself in Court over a highly controversial policy decision that has little or no Constitutional significance.