DACA, Major Questions, Gundy, and the Non-Delegation Doctrine

President Trump's Tweet Demonstrates Why He Can Rescind His Predecessor's Immigration Policy

|The Volokh Conspiracy |

Ilya Shapiro and I filed an amicus brief on behalf of the Cato Institute and Professor Jeremy Rabkin in DHS v. Regents of the University of California. We filed the brief "in support of DACA as a matter of policy but [the government] as a matter of law." The caption caused quite a kerfuffle on social media. You should not judge a brief by its cover, we explained in a new SCOTUSBlog symposium essay:

Most Supreme Court amicus briefs are predictable. Groups that favor outcome A argue that the law supports outcome A. Groups that favor outcome B argue that the law supports outcome B. Occasionally, groups file cross-ideological briefs in which people of opposite political stripes unite to support a specific cause. But even these briefs fall into the same pattern: Regardless of ostensible ideological labels, all the groups on the brief support the policy outcome that the brief's legal theory advances. . . .

We affirmatively support as a matter of policy normalizing the immigration status of individuals who were brought to this country as children and have no criminal records. (See Cato's immigration work if you have any doubts.) Moreover, as a matter of first principle, people shouldn't need government permission to work. But the president cannot unilaterally make such a fundamental change to our immigration policy — not even when Congress refuses to act.

Inside the brief, we advance an argument that was not presented, directly at least, by the government's briefing in this case.

The attorney general reasonably determined that DACA is inconsistent with the president's duty of faithful execution. Admittedly, the attorney general's letter justifying the rescission is not a model of clarity. But it need not be. This executive-branch communication provides, at a minimum, a reasonable constitutional objection to justify DACA rescission. Specifically, it invokes the "major questions" doctrine – outlined by Justice Neil Gorsuch in dissent in Gundy v. United States – which is used "in service of the constitutional rule" that Congress cannot delegate legislative power to the executive branch.

Much to our pleasant surprise, after we filed the brief, President Trump addressed our position in his own inimitable way:

To be sure, the tweet has factual mistakes. For example, President Obama didn't sign the "totally illegal document." The Secretary of Homeland Security implemented DACA. But for once, the President's social media account actual bolsters his case in court. He wrote that DACA "would actually give the President new powers."  In other words, DACA relied on a reading of the INA that would delegate legislative powers to the executive that he lacks. Stripped of all legal formalities, the presidential tweet concisely explains why DACA was inconsistent with the president's duty of faithful execution. And it comes right from the commander in chief.

Candidly, this tweet is far more descriptive than the attorney general's letter, which dances around the issue of what DACA' "constitutional defects" are. In our brief, we offer a suggestion to the Court:

Here, the executive branch is on the same page: the previous administration's reading of federal law that supports DACA would render parts of the INA unconstitutional. For that reason, the attorney general recommended, and the secretary decided, to rescind DACA. The Court should hesitate before reaching an alternate holding, in which the attorney general and the secretary of homeland security, as well as the solicitor general, were simply mistaken about the executive's faithful execution. The better understanding is that the reference to DACA's "constitutional defects" was framed in terms of the major questions and non-delegation doctrines, as Justice Gorsuch recognized in Gundy. But if there is any doubt about this important question, the government should be asked to represent its position about DACA's "constitutional defects." 

With, or without the tweet, the record amply provides enough ground to justify the rescission of DACA.

 

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  1. “”in support of DACA as a matter of policy but [the government] as a matter of law”

    The reason you took a beating on social media is that in doing this, you were not acting as a friend of the court. You were trying to preserve CATO’s street cred on immigration, while you effectively supported a legal position that could kick sympathetic people out of the country.

    Here’s a simple guideline for these things: amicus briefs are for the Court’s benefit, not yours. Indeed, if I were czar of the judiciary, I would impose an extremely high standard for actual amicus briefs. If non-parties wanted to file a 1 sentence statement of support of one party or the other, that’s fine. But to file an amicus brief, you need to have something unique to say based on your organization’s actual expertise and which is not adequately covered by the parties. I.e., you actually help the Court.

    And this is demonstrative of why. You aren’t helping the Court one bit by making your little mini-speech about how DACA is good policy. If DACA’s good policy, stay out of the case! Alternatively, if you think the need to confirm President Trump’s power to do this is more important than what you think about DACA as policy, file your brief and say nothing in it about what you think of DACA as policy, and take the political hit from people who contend that Cato’s espoused liberal policy agenda on immigration is a smokescreen for fealty to movement conservativism’s policy priorities. Take the hit.

    But when you say this, you aren’t helping the Court. If I were on the Supreme Court, I would have urged my colleagues to strike your brief.

    1. “If DACA’s good policy, stay out of the case!”

      Spoken like someone with no principles.

      1. Not at all. This is standard lawyering. Person suffers a wrong, and you are absolutely convinced that the person was injured. But you know there’s some legal doctrine that absolutely bars an action. So you can’t take on the representation- you have obligations under Rule 11, etc. You also, however, won’t represent the tortfeasor, because he’s the tortfeasor!

        In this instance, CATO thinks the DACA people should stay in the country. So what are they ever doing petitioning the Supreme Court to give the President the power to kick them out? Just stay out of the case.

        Or, alternatively, as I said, you can go ahead and argue your constitutional and statutory position, but then CATO shouldn’t be assuring us how much they love the Dreamers and want them to stay. Nobody forces them to enter the matter.

        1. “In this instance, CATO thinks the DACA people should stay in the country. So what are they ever doing petitioning the Supreme Court to give the President the power to kick them out? Just stay out of the case.”

          Spoken like someone with no principles. If you only assert your principles when convenient, they aren’t really principles.

          1. Having principles doesn’t put you under an obligation to file amicus briefs.

            Does Blackman file a brief every time something the government does is challenged in court? Besides, whatever he thinks about it, the issue is open to dispute, so why reinforce the arguments of the side favoring a policy you dislike. For some reason he can’t wait to jump in and say that it’s OK for Trump to kick the Dreamers out.

            1. “Does Blackman file a brief every time something the government does is challenged in court?”

              You got me. I bet he totally doesn’t do that. And that’s totally the same thing as filing an amicus brief in a Supreme Court case involving serious separation of powers considerations. What an absolutely brilliant argument.

              “Besides, whatever he thinks about it, the issue is open to dispute, so why reinforce the arguments of the side favoring a policy you dislike.”

              Spoken like someone with no principles. If you only assert your principles when convenient, they aren’t really principles. And if you only assert your principles when convenient, you might find that it’s already too late when it does become convenient.

            2. It’s almost like the subject in question is a matter of principle and not policy and permission of said principle could also support outcomes whose policies you don’t support…whoa

        2. In this instance, CATO thinks the DACA people should stay in the country. So what are they ever doing petitioning the Supreme Court to give the President the power to kick them out?

          Some people think it vitally important government be forced to follow the rules The People set up for it when creating the Constitution (AKA the constitution…of the government.)

          The design was careful to prevent government from acquiring tools of tyranny, so any such power grab outside the deliberately laborious process of persuasion and supermajorith, should be fought tooth and nail just because, even if what is to be done with the power is a desirable policy.

    2. “The reason you took a beating on social media…”

      When you find yourself typing these words, stop typing. The reason anybody takes a beating on social media is because social media is full of virtue-signaling schmucks.

      1. And who gives a shit anyway? The passion with which folks address this very minor issue comes off as rather unhinged.

    3. Indeed, if I were czar of the judiciary, I would impose an extremely high standard for actual amicus briefs.

      You and Posner. Voices for Choices v. Illinois Bell Telephone Co., 339 F.3d 542 (7th Cir. 2003).

  2. I hope Republicans ride their immigration issues to their natural conclusion.

    In a nation whose history indicates that our bigots (who have at one time or another targeted most Americans, such as the Irish, blacks, Jews, Asians, gays, Catholics, Italians, women, agnostics, eastern Europeans, Muslims, Hispanics, other Asians, other Hispanics, etc.) do not prevail, at least not over time, that natural conclusion seems destined to be conservatives’ continuing failure in the American culture war.

    1. This blog is trying to stop unwarranted power grabs, which is why all these people are lined up for miles trying to get here, which is to say, get away from countries where governments can, and therefore do, do whatever they want, leading to hobbled economies and life outlooks.

  3. “But the president cannot unilaterally make such a fundamental change to our immigration policy — not even when Congress refuses to act.”

    That seems backwards; Shouldn’t it be a matter of “especially when” Congress refuses to act? Congress actually considered the matter and rejected the policy, rather than merely abdicating the field.

    1. Assuming Congress legitimately has that power, no. If they have explicitely considered somethig and denied it, that’s that. The will of the people, via representation, has spoken.

      As with the ACA, Congress got rid of the tax penalty, but explicitely refused to repeal it whole, and therefore supports its current hobbled form w.r.t. arguments to overturn it.

  4. I think President Obama, like it or not, likely had the power to implement DACA given the huge amount of discretion given him by Congress. But President Trump, like it or not, has the discretion to rescind it.

    1. The problem is that DACA wasn’t just refusing to deport the illegals in the program.

      DACA also created a work-authorization and verification program. News forms were created, processed, and stored. Verification requests were received, processed, and replied to. Staffers spent time on these things, and money was spent on both the equipment and the facilities.
      None of that spending was authorized by Congress.

    2. As I read it, the brief argues 1) DACA is not authorized by statue (the INA), and 2) in the alternative that DACA is authorized by statute, the INA would be unconstitutional as applied because it would violate the nondelegation doctrine.

      So at first blush, it would appear that Blackman is arguing that it cannot both be the case that DACA was (statutorily and constitutionally) legal while its rescission is also legal.

      On the other hand, he argues that rescission should be afforded much greater deference than the original order. So perhaps the Court could take a pass on whether DACA is legal, and give deference to the rescission. Nonetheless if the Court holds that DACA is legal, it would be hard pressed to uphold the rescission.

      1. Disagree.
        If the Court holds that DACA is a legal use of Executive power then the rescission is also a legal use of Executive power.

        However, if the Court holds that DACA is an illegal use of Executive power then the rescission is moot because DACA itself is no longer valid.

        1. In 2014, one of the key arguments used by advocates such as Ilya Somin in support of DACA’s legality was that it was completely ephemeral and could be easily reversed in the future by the executive at any time. Some of us called it at the time that this was nonsense. Now here we are almost 3 years in the Trump administration and no DACA repeal due to far left activist judges.

          Even Obama admitted that he could not do anything legally, but then completely reversed himself and did what he had already admitted he couldn’t do. But even then, he said, “This is not immunity. This is not a path to citizenship. It’s not a permanent fix. It’s a temporary stopgap…”

          Fun fact, DACA kids are currently 40 years old.

    3. “I think President Obama, like it or not, likely had the power to implement DACA”

      He didn’t. Not even close.

  5. Justice Ginsburg recently griped about Justice Thomas’ use of the word “baby.” She should watch her own language. “The people” are a class of persons who have ties to this country which asylum-seekers at the border certainly do not. Indeed the word “person” lacks extraterritorial application every bit as much as it lacks prenatal application.

    The Constitution has no concern for the lives of those to whom the word “person” does not apply. That was what Roe v. Wade was all about.

    Don’t like Roe v. Wade, reverse it. Like Roe v. Wade, apply it fairly, surprising conclusions and all, not just only when it happens to coincide with your personal religious beliefs.

  6. Professor Blackman speculated that Judge Hanen would pause the DACA case while SCOTUS reviews the government’s recision. Has that happened? I can’t find anything on the 5th Circuit website. If not, why hasn’t Judge Hanen Made a ruling in more than a year since making a preliminary finding that he would probably end DACA?

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