Justice for procedural reasons is still justice

Justice by a thousand procedural cuts.

Sometimes, bigger picture justice is achieved through court orders invoking one procedural link at a time. Unfair laws, arbitrary laws, capricious laws passed by elected governments and democratic processes can succumb to correction by judges with an eye to justice. But judges often don’t use terms like just and fair. They couch their disdain for the law in language such as procedural rights, due notice, reasoned decision, and other language of administrative law. But in truth, it is language that kills an unjust law, by a thousand cuts of due process.

In our system of justice, we are all aware that the Supreme Court of Canada struck down abortion laws in the well-known decision Morgentaler v. The Queen [1988] 1 SCR 30, but not because criminalizing abortion was wrong. The reasoning of the majority of the court ultimately turned on the procedures used in hospitals, the delays in those procedures caused by bureaucratic ineptitude, and the lack of adequate evaluation criteria allowing hospital committees to grant or deny therapeutic abortions. The essence of a decision that we all know as proclaiming abortion as a woman’s right to choose to carry a baby to term or to abort it was not the basis for the majority of the court. It was about process and procedure. And although that process and procedure could have been corrected, it never has been. As such, the right to have an abortion remains entrenched.

In a similar vein, the Supreme Court of Canada struck down a decision to refoule a refugee to a country in which he faced torture in Suresh v. Canada, [2002] 1 SCR 3 because of the procedural deficiencies in the refoulement process, not because torture was wrong per se — even though it is.

The recent decision of the U.S. Supreme Court in Department of Homeland Security et al. v. Regents of The University of California et al., No. 18–587 Argued November 12, 2019—Decided June 18, 2020, is an example of judicial correction of an immoral law utilizing an ancient blend of administrative law standards delivered on the inexorable sheath of certiorari. It was a stab into a Trumpian maneuver to gain votes on a platform couched in terms of a threat of illegals, i.e., unwanted persons taking jobs from Americans and “alien” criminals. The program at issue was called Deferred Action for Childhood Arrivals (DACA). Introduced by the Obama administration in 2012, it allowed certain unauthorized aliens who entered the United States as children to apply for a two-year forbearance of removal. Those granted such relief were also eligible for work authorization and various federal benefits. Some 700,000 aliens availed themselves of this opportunity. The U.S. Supreme Court referred to it as follows:

“Known as DACA, the program applies to childhood arrivals who were under age 31 in 2012; have continuously resided here since 2007; are current students, have completed high school, or are honorably discharged veterans; have not been convicted of any serious crimes; and do not threaten national security or public Cite as: 591 U. S. (2020) 3 Opinion of the Court safety. Id., at 98(a). DHS [Department of Homeland Security] concluded that individuals who meet these criteria warrant favorable treatment under the immigration laws because they ‘lacked the intent to violate the law,’ are ‘productive’ contributors to our society, and ‘know only this country as home.’”

Many of the 700,000 aliens who applied for relief were infants when they arrived in the U.S. As the program noted, those fulfilling the strict criteria of “good citizenship” were protected from removal, given work permits and other benefits for two-year periods which were extended by executive order every two years. Means for a grant of permanent residency and citizenship would be possible in time. In the meantime, they were the “dreamers,” hoping to gain citizenship but at least protected from removal.

Until, that is, the day Donald Trump became president. His officials rescinded DACA, with some allowance for time and those already in the system. Ultimately, however, the dreamers were to be deported. Seven hundred thousand of them!

The U.S. legal system responded and, in a judgement released on June 18, a majority of the court, led by Chief Justice John Roberts (a George W. Bush appointee), held that the revocation of DACA violated basic administrative law principles by not providing a reasoned, clear decision and by acting beyond the agency’s discretionary powers. The court held that:

“We do not decide whether DACA or its rescission are sound policies. ‘The wisdom’ of those decisions ‘is none of our concern.’ Chenery II, 332 U. S., at 207. We address only whether the agency complied with the procedural requirement that it provide a reasoned explanation for its action. Here the agency failed to consider the conspicuous issues of whether to retain forbearance and what if anything to do about the hardship to DACA recipients. That dual failure raises doubts about whether the agency appreciated the scope of its discretion or exercised that discretion in a reasonable manner. The appropriate recourse is therefore to remand to DHS so that it may consider the problem anew.”

Immediately on the decision being released last Thursday the U.S. president responded in a tweet:

“These horrible & politically charged decisions coming out of the Supreme Court are shotgun blasts into the face of people that are proud to call themselves Republicans or Conservatives.”

The U.S. Supreme Court dealt Donald Trump a procedural slap in the face, and saved 700,000 good people, non-citizens all, from forced exile from a country many had lived in since childhood. On its face, the decision was a death by fair procedure of an unlawful enactment. In reality, it was justice served cold to an administration bent on currying favour with its supporter base through any means available.

Perhaps, at last, the U.S. Supreme Court is reawakening and finding a way to restore a sense of balanced fairness to a justice system stained by politics. Fundamental administrative law principles provide such a pathway.