Overstepping? A divided Supreme
Court considered DACA and
LGBTQ employment rights


Two recent United States Supreme Court decisions suggest a straining of the separation of powers between the three branches of our federal government. Just as nature abhors a vacuum, the other two branches of power may expand when one branch is unable or unwilling to act. Hardening divisions along party lines have impeded Congress’ legislative power leaving many highly contentious social issues unresolved – from gun control, to immigration, to LGBTQ rights. In June, the Supreme Court provided a response to two of those issues.

In Department of Homeland Security v. Regents of Univ. of Cal., the Supreme Court granted a temporary reprieve to the immigration relief program known as Deferred Action for Childhood Arrivals (DACA) and in Bostock v. Clayton County, the Supreme Court extended employment protections in Title VII of the Civil Rights Act of 1964 to the LGBTQ community. The divide in the Supreme Court was fully evident in the majority, concurring and dissenting opinions. The tortuous paths taken by the majorities in these decisions caused near apoplexy to its more conservative members, who argued the Court was overstepping its constitutional power. The majorities, however, vociferously denied their decisions were legislation from the bench, even expressly recognizing that the power to legislate belongs to Congress.

Certainly, the current composition of the Supreme Court suggests it will lean conservative, particularly with its newest additions of Justices Gorsuch and Kavanaugh, appointed by President Trump, who both espouse the narrowest role for the Court. This makes these recent decisions particularly curious as the Court, straining to appear consistent with textualist approaches, reaches results which arguably should have been reserved for Congress.
In these two recent cases, the justices wrote eight opinions altogether, with justices writing separately and concurring and dissenting in part. By all appearances, getting to a majority was no small feat and each claims the right of the argument, with the late Justice Scalia and his textualist approach to statutory construction getting more than a few mentions. The dissents warned that the majority opinions could encourage expanded treatment down the road, which could lead to unintended consequences. For many people, not only the DACA recipients and the LGBTQ community, the results were welcome; but one can question the cost based on the logic and reasoning undertaken to reach them. How will these decisions guide future cases and could this reasoning and these results be twisted for less laudable purposes?

DACA given temporary reprieve

Department of Homeland Security v. Regents of the Univ. of Cal., 591 U.S. ___ (2020), Chief Justice Roberts delivered the opinion of the Court, except as to Part IV (which concerns an equal protection argument). He was joined in full by Justices Breyer, Ginsburg and Kagan, and Justice Sotomayor joined to all but Part IV. She filed her own opinion concurring in part, concurring with the judgment in part and dissenting in part. Justice Thomas filed an opinion that concurred in the judgment in part and dissented in part, which was joined by Justices Alito and Gorsuch. Justices Alito and Kavanaugh filed separate opinions concurring in the judgment in part and dissenting in part. 

In the majority opinion, Chief Justice Roberts explained the history leading up to President Obama’s executive order in 2012 that created the DACA program, which allowed certain unauthorized aliens who had arrived in the United States as children to apply for a two-year forbearance from removal. When granted this relief, the young adults became eligible for work authorizations and various federal benefits. It is reported that some 700,000 aliens have availed themselves of DACA’s opportunities. 
Congress had been unable or unwilling to find common ground to settle the immigration questions relating to these hundreds of thousands of young people who came illegally to the United States but have known no other home but the United States. Many have served in the military, attended college, began careers and started their own families, even with their uncertain legal status. Under the Obama and Trump administrations, Congress has failed to reach a bipartisan solution to this and other social issues. 

In 2017, after the change in administrations, Acting Secretary of Homeland Security Elaine Duke terminated DACA. She acted on the advice of then Attorney General Jeff Sessions who advised that DACA shared fatal flaws with the Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) program, a companion to DACA put in place in 2014. A nationwide preliminary injunction issued by a Texas District Court had enjoined DAPA and the injunction was upheld by the Fifth Circuit Court of Appeals. By a divided vote, the Supreme Court affirmed the injunction which allowed the DAPA litigation to continue in the District Court. There, on remand, Acting Secretary Duke’s decision to rescind DACA was challenged as arbitrary and capricious in violation of the Administrative Procedures Act (APA) and as infringing upon equal protection guarantees of the Fifth Amendment’s due process clause. One of the District Courts considering the issue permitted the Department of Homeland Security to offer a further explanation why it had rescinded DACA. In that court, Acting Secretary Duke’s successor, Secretary Kirstjen Nielsen, offered new justifications for the rescission decision. This District Court concluded that the new reasoning had failed to provide a meaningful explanation. The government appealed the District Court decisions to the Second, Ninth and DC Courts of Appeal and sought certiorari to the Supreme Court.
In Regents, the Supreme Court reviewed the DACA rescission under the APA and rejected it, finding it had been made in an arbitrary and capricious manner. The Court refused to consider Secretary Nielsen’s justifications since they were in addition to and not offered at the time Acting Secretary Duke rescinded DACA. The Court rejected the after-offered explanations and determined that Acting Secretary Duke had exercised her discretion in rescinding DACA without fully supplying a reasoned decision. This made her exercise of discretion arbitrary and capricious. Justice Thomas, joined by Justices Alito and Gorsuch, and Justice Kavanaugh took issue with the majority’s reasoning. Justice Thomas went further, he found that the DACA program, which had been put in place by President Obama’s executive order without a notice or comment period, actually was void ab initio and he indicated he would have upheld the rescission (which coincidentally had been made by Trump’s executive order, without notice or comment). Justice Kavanaugh gratuitously offered support for the Trump administration, writing, “Since 2017, President Trump’s administration has sought to rescind DACA based on its different and narrower understanding of the Executive’s prosecutorial discretion under Article II and the immigration laws.”

Without comment on the many actions President Trump himself has taken by executive orders, Justice Kavanaugh proclaimed, “In its view, the Executive Branch may not, and as a policy matter should not, unilaterally, forbear from enforcing the immigration laws against such a large class of individuals.” He continued, “The current administration has stated that it instead wants to work with Congress to enact comprehensive legislation that would address the legal status of those immigrants together with other significant immigration issues.” In his view, Secretary Nielsen offered sufficient explanation, making the DACA rescission decision not arbitrary or capricious. He noted that the majority did not eliminate the uncertainty over the status of the DACA recipients. He added, “that uncertainty is a result of Congress’s inability to agree on legislation, which in turn has forced successive administrations to improvise.” Justice Alito wrote a short opinion that bemoaned the activism of the majority. He complained, “our constitutional system is not supposed to work [this] way. DACA presents a delicate political issue, but that is not [the judiciary’s] business.”

Bostock finds LGBTQ employment protections in Title VII

In a truly interesting turn of events, Trump-appointed conservative Justice Gorsuch wrote the opinion of the Supreme Court in
Bostock v. Clayton County, 590 U.S. __ (2020). He was joined by Chief Justice Roberts and liberal Justices Ginsburg, Breyer, Sotomayor and Kagan. Justice Alito filed a dissent, joined by Justice Thomas. Once again, Justice Kavanaugh filed a solo dissenting opinion which no other justice joined. Bostock was based on three lower court decisions arising out of the Second, Sixth and Eleventh Districts where employees had been terminated either because they were homosexual or transgender. Clayton County fired Gerald Bostock for participating in a gay softball league; Altitude Express fired Donald Zarda one day after he mentioned he was gay; and R.G. & G.R. Harris Funeral Homes fired Aimee Stephens, who presented as male when hired, after she informed her employer that she planned to live and work as a female. The decisions were based on a literal construction of the “because of sex” language contained in Title VII of the Civil Rights Act of 1964.

The majority claimed it decided the case using only the clear language of the statute. Justice Gorsuch explained that the phrase “because of sex” was clear and not ambiguous and, therefore, there was no need to resort to legislative history to discern its meaning. The ordinary meaning of “sex,” he declared, was biologically male or female, and “because of” meant by reason of or on account of. He explained that an employer violates Title VII when it intentionally fires an individual based in part on sex. He concluded that “because discrimination on the basis of homosexuality or transgender status requires an employee to intentionally treat an individual differently because of their sex, an employer who intentionally penalizes an employee for being homosexual or transgender violates Title VII.” In a somewhat circular and definitely declarative manner, he argued these employers are necessarily relying on the employee’s sex when making their decisions.

Justice Gorsuch’s logic was unexpected since the phrase “because of sex” has been subject to over 50 years of judicial inquiry leading to different results and approaches as it related to protections for homosexual and transgender employees. He took a literalist approach when he broke the phrase into its component parts to find that employment decisions that adversely impacted gay and transsexual employees had to be based at least in part on sex because these employees would have been treated differently had their actions been taken by employees of a different sex. A man who is fired for marrying a man would not be fired if he had been a woman; therefore, Justice Gorsuch concluded, the decision was based on the employee’s sex. Very quotably, Justice Gorsuch wrote, “The limits of the drafters’ imagination supply no reason to ignore the law’s demands.” By focusing only on the words, which he found clear and unambiguous, Justice Gorsuch avoided the legislative history of the 1964 statute and vaulted Title VII’s protections into the 21st century.

Justice Gorsuch’s approach drew considerable consternation from the dissenting justices who share his textualist approach to statutory construction. Indeed, Justice Alito’s first line encapsulated his outrage. He wrote, “There is only one word for what the Court has done today: legislation.” Justice Kavanaugh made a similar point writing, “We are judges, not Members of Congress.” Citing the Federalist Papers, he continued, “Under the Constitution’s separation of powers, our roles as judges is to interpret and follow the law as written, regardless of whether we like the result. “Our role is not [to] make or amend the law.” In his view, “as written, Title VII does not prohibit employment discrimination because of sexual orientation.” Arguing further, Justice Kavanaugh scolded the majority, writing, “If judges could, for example, rewrite or update securities laws or health care laws or gun laws or environment laws simply based on their own policy views, the Judiciary would become a democratically illegitimate super-legislature – unelected, and hijacking the important policy decisions reserved by the Constitution to the people’s elected representatives.” He warned, “Judges may not update the law because they think that Congress does not have the votes or the fortitude.” Likewise, “Judges may not predictively amend the law just because they believe that Congress is likely to do it soon anyway.” 

Joined by Justice Thomas, Justice Alito, in less blunt language, also argued that the Court’s decision changing and updating Title VII causes the Court to usurp the constitutional authority of the other branches. Still, known to share textualist philosophies, Justice Alito removed the kid gloves to chide Justice Gorsuch: “The Court attempts to pass off its decision as the inevitable product of the textualist school of statutory interpretation championed by our late colleague Justice Scalia, but no one should be fooled. The Court’s opinion is like a pirate ship. It sails under a textualist flag, but what it actually represents is a theory of statutory interpretation that Judge Scalia excoriated – the theory that courts should ‘update’ old statutes so that they better reflect the current values of society.” Justice Kavanagh also enlisted the late Justice Scalia, emphasizing the vast divide between literal and ordinary meanings in his challenge to the Court’s opinion. He reminded the Court that “Justice Scalia explained the extraordinary importance of hewing to the ordinary means of a phrase” and then quoted former U.S. Circuit Court Judge Learned Hand to note that “sterile literalism …loses sight of the forest for the trees.” Critically, he wrote, “Do not simply split statutory phrases into their component words, look up each in a dictionary, and then mechanically put them together again, as the majority opinion today mistakenly does.” Reiterating Justice Scalia, he concluded, “that approach misses the forest for the trees.” He further claimed that approach “disrespects ordinary means and deprives the citizenry of fair notice what the law is.” He disputed that the ordinary meaning of “discriminate because of sex” encompasses discrimination because of sexual orientation and argued that the majority was rewriting history. He reminded the majority that when Congress intended to refer to sexual orientation, it used those words. He challenged the majority’s “fundamentally flawed” approach to statutory construction. “Bedrock principles of statutory interpretation dictate that we look to ordinary meaning, not literal meaning, and that we likewise adhere to the ordinary meaning of phrases, not just the meaning of words in a phrase.” He argues that “the best way for judges to demonstrate that we are deciding cases based on the ordinary meaning of the law is to walk the walk, even in the hard cases when we might prefer a different policy outcome.” Setting aside his outrage at the majority’s seemingly wrong-minded approach to textualist statutory construction, Judge Kavanaugh recognized this as a good result for gay and lesbian Americans, while still decrying it was “Congress’s role, not this Court’s, to amend Title VII.”

And so it seems that when one branch of government fails to act the others seem to step in, as when President Obama offered temporary reprieve to young immigrants who found themselves in the United States without their say, and when the Supreme Court found that “because of sex” quite obviously included the LGBTQ community even where the 1964 Congress, in including that phrase, did not realize its words would provide protection to those communities.
Please contact one of Chuhak & Tecson’s
Employment attorneys if you have any questions regarding these rulings.

Client Alert authored by
Jeralyn H. Baran (312 855 4613), Principal and leader of Chuhak & Tecson’s Employment practice group.

This Chuhak & Tecson, P.C. communication is intended only to provide information regarding developments in the law and information of general interest. It is not intended to constitute advice regarding legal problems and should not be relied upon as such.

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