DOJ finally identifies the "constitutional defects" in DACA

The Attorney General's argument, along the lines of our Cato amicus brief, sounds in the non-delegation and major question doctrine.

|The Volokh Conspiracy |

In a 2017 letter, Attorney General Sessions concluded that DACA suffered from "constitutional defects." Over the past two years, the Department of Justice has steadfastly refused to acknowledge what these "constitutional defects were."

In DHS v. Regents of the University of California, Ilya Shapiro and I submitted an amicus brief on behalf of the Cato Institute and Professor Jeremy Rabkin. We lamented the fact that DOJ has never explained what these "constitutional defects" were, but urged the DOJ to state its position:

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.9 But if there is any doubt about this important question, the government should be asked to represent its position about DACA's "constitutional defects."

DOJ finally opined on this question in its reply brief (pp. 20-21):

Respondents contend (N.Y. Br. 31-42) that DHS offered an inadequate explanation for its legal analysis. But the APA requires only that "the agency's path may reasonably be discerned." State Farm, 463 U.S. at 43 (citation omitted). Both memoranda reflect DHS's conclusion that the DACA policy exceeded the agency's "statutory authority." Regents Pet. App. 116a, 123a. That conclusion does not depend on whether DACA prevented DHS officials from exercising any discretion. See pp. 19-20, supra. And neither Secretary "place[d] any significant weight" on Attorney General Sessions' statement that DACA was unconstitutional, FCC v. National Citizens Comm. for Broadcasting, 436 U.S. 775, 804 n.23 (1978)—which, in any event, simply underscored his strongly held view that DACA was based on a statutorily unauthorized exercise of Executive power.

In other words, "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."

George Will also discussed our brief in his latest column:

A brief from Ilya Shapiro and Josh Blackman (who favor DACA as policy) for the Cato Institute argues that Obama's action went beyond "constitutionally-authorized executive power." Such power is not enlarged "when Congress refuses to act, no matter how unjustified the congressional inaction is." There is no constitutional implication from Congress' passivity in the face of this "foundational transformation of immigration policy," a transformation "inconsistent with the president's duty of faithful execution."

Furthermore, if the Immigration and Nationality Act actually grants to presidents such discretion to rewrite immigration law, then the INA violates the nondelegation doctrine. This forbids Congress to delegate to executive agencies essentially legislative powers regarding "major questions," which surely encompasses immigration policy.

The Trump administration's main reason for rescinding DACA is thoroughly disreputable but entirely permissible — that DACA is bad policy. Another and sufficient reason, however, is that DACA was implemented in accordance with the noxious theory that presidents acquire new constitutional powers by engaging in practices that a lethargic Congress does not challenge. As Cato's brief says, "The executive branch does not need the judiciary's permission to cease enforcing a regulation it determines to be unconstitutional. . . . Courts should allow reversals of novel execution actions that expand presidential power."

We hope that the major question and nondelegation doctrine are considered in oral arguments next week, which I will be attending.

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  1. One of the key arguments that open-borders fanatic Ilya Somin used to make the case that DACA was constitutional was that a future President could easily do away with DACA with the flick of a pen. How laughable that turned out to be, when Never Trump judges can be solicited for whatever rulings the leftist activists desire.

    1. If Obama can make it up out of whole cloth a single person cannot rend it with out the unanimous concurrence of several thousand Federal Judges.

  2. I Strongly doubt DACA was unconstitutional, and I think the issue is totally irrelevant. A new Conservative administration owes no more obligation to explain why it wants to enforce a law more strictly and Increase its enforcement priority than an incoming liberal one is obliged to explain why it chooses not to enforce Or lower enforcement priority of certain laws.

    The same prosecutorial discretion that let the Obama administration initiate DACA lets the Trump administration end it.

    1. Why do you doubt DACA was unconstitutional?

      Let’s give an example. Let’s say President Trump declares that he will direct the FEC to no longer pursue campaign finance violations, because due to his “prosecutorial discretion” he’s just going to decline to prosecute any violations. Furthermore, anyone who might have violations is free to pay a small fee to a government agency to gain perpetual immunity from ever being prosecuted.

      Is that constitutional? Why or why not?

      1. If I violated campaign finance laws while my 6-month old son is in a baby pack on my back, should my son be prosecuted? Why or why not?

        1. If you violate campaign finance laws with a 6 month old son, should your son be punished by having his father thrown in prison for a few years?

          Why or why not?

          1. We are not talking about 6-month old kids who are deported with their parents. We’re talking about kids who have been here a good part of their lives.

            We don’t wait ten years and then suddenly deport the now 15-year-old to a country where he has never lived.

            So whatever you are trying to say, it is irrelevant to DACA.

            1. There isn’t some magic provision in the law that says “As long as you keep violating it, if you violate it long enough, it’s completely legal.”

              If you sell cocaine for 10 years without being caught, you can’t have some magic defense “Well, I was doing it for so long, and was never prosecuted, so it’s legal”.

              The law doesn’t work that way.

          2. “If you violate campaign finance laws with a 6 month old son, should your son be punished by having his father thrown in prison for a few years?”

            Yes. But perhaps he shouldn’t be taken away from anyone he knows, shipped halfway across the country, and kept in a federal facility not designed for infants and small children.

            This is kinda fun. Not sure what it has to do with DACA.

        2. The best majority of DACA recipients were 14 or older when they came into the country. DACA does not protect solely 6 month old trespassers. When you have to resort to such idiotic examples you’ve already lost the argument.

          1. Check you facts on that one.

            The median age of entry is 6 years old.
            According to a 2017 online survey of more than 3,000 DACA recipients, the median age of entry into the United States was 6 years old, and the most common age was 3.

            https://www.nytimes.com/interactive/2017/09/05/us/politics/who-are-the-dreamers.html

            1. Yeah, with the catch that, since they entered illegally, the government was just taking their word for it.

              1. Yeah, lots of stats are based on self-reporting.

                Better than Jesse just making a number up.

                1. Stats based on self reporting by a class of people defined by being in violation of the law are particularly dodgy.

                  1. So you prefer to just make up numbers, like Jesse, because made up numbers suit your argument.

                    Oh wait, I bet he got that from some reputable source, like Rush Limbaugh.

                    1. You’re relying on stats generated from self-reporting by criminals, and I’m the one just making it up?

        3. If you set up a tent on my lawn for you and your child, you and your child still need to “Get off my lawn!” because you are both trespassing.

        4. If you violated campaign finance laws by diverting a bunch of money to a trust fund for your 6-month old, should those funds be untouchable?

      2. “Let’s say President Trump declares that he will direct the FEC to no longer pursue campaign finance violations, because due to his “proprietorial discretion” he’s just going to decline to prosecute any violations. ”

        Why wouldn’t that be constitutional? Of course the next president could reverse.

        1. Why wouldn’t that be constitutional? Of course the next president could reverse.

          So the president who wants tax rates to be reduced can simply announce that he will not enforce the payment of taxes above a certain rate and you think that’s OK during his tenure because the next president can set his own preferred tax rate (as long as not higher than the statutory rate)?

      3. Your hypothetical doesn’t have the nondelegation/major issue problem that DACA is purported to have, so the comparison is inapt.

        The puzzle, for you, is to explain why simple non-prosecution and non-enforcement is constitutional, but a set of principles defining how prosecutorial discretion will be exercised is unconstitutional.

        1. Your hypothetical doesn’t have the nondelegation/major issue problem that DACA is purported to have, so the comparison is inapt.

          The nondelegation doctrine bars Congress from transferring its legislative power to another branch of Government. Are you saying that a decision by the president to ignore all campaign finance violations, and to allow violators to pay a small fee to a government agency to gain perpetual immunity from ever being prosecuted for campaign finance activity, would not implicate questions of deep economic and political significance that are central to the statutory scheme?

          The puzzle, for you, is to explain why simple non-prosecution and non-enforcement is constitutional, but a set of principles defining how prosecutorial discretion will be exercised is unconstitutional.

          Why is this the puzzle? The puzzle posed by the example is why this action by the president would not be constitutional if the DACA action was constitutional.

  3. “The Trump administration’s main reason for rescinding DACA is thoroughly disreputable but entirely permissible — that DACA is bad policy.”

    Good grief, with friends like you who needs enemies?

    1. OK, as someone else clarified: those are Will’s words, not Blackman’s.

  4. Im left wondering why enforcing immigration laws is disreputable. If there is no penalty for violating immigration law obviously would-be illegal immigrants face no deterrant.

    It will also be interesting to see whether Kavanaugh joins Gorsuch and the other conservatives in their interring of nondelegation.
    Clearly DACA exceeds the “filling up the details” standard. Even if the rescinding violated the APA that should be of no import if the initial administrative action was unlawful.

    1. Im left wondering why enforcing immigration laws is disreputable.

      Enforcing them against individuals who:

      a. Have done nothing wrong
      b. Are conducting themselves in a reputable and productive way
      c. Would, in many cases, have extreme difficulty adapting themselves to the countries they came from

      is not just disreputable, it is despicable. I mean, even Trump once admired the Dreamers, but I guess that was a lie like everything else he says.

      Why Blackman continues his amicus filing frenzy in this case is a mystery.

      1. a. They have done something illegal.
        b. Current conduct does not eliminate past or current crimes.
        c. Difficulty due to illegal acts being committed doesn’t mean the executive branch can unilaterally write the law.

        Listen, I understand your position. It’s a sympathetic position. It’s like a young mother who shoplifts baby formula from a giant corporation to feed her baby. No one wants to really prosecute her. And in general, the DA won’t, there are bigger fish to fry.

        But the DA can’t rewrite the law. He can’t say “No mother will ever be prosecuted ever for shoplifting”. He can’t institute a new fee program that immunizes young mothers from being arrested for shoplifting, as long as they pay a fee. And he can’t unilaterally start a new program that allocates funds and gives these young mothers resources, as much as he wants to. You need a legislature for that, and a new law.

        Likewise, Obama can’t unilaterally rewrite immigration law. He can’t institute massive new programs legalizing certain classes of illegal actions. He needs an act of Congress and a new law for that.

        And before you gripe about the GOP, remember, these fixes were in place in 2007. Before it was sunk by the Senate. Including…Obama.

        1. How do three-year-olds commit a crime?

          But the DA can’t rewrite the law. He can’t say “No mother will ever be prosecuted ever for shoplifting”. He can’t institute a new fee program that immunizes young mothers from being arrested for shoplifting, as long as they pay a fee.

          The DA can decide not to prosecute certain types of cases. Sort of like Reagan did in 1987.

          these fixes were in place in 2007

          I don’t know what “fixes” you’re talking about in 2007. AFAICT in 2007 Obama voted in favor of cloture on a Dreamer bill. Of the 44 nays on cloture, 36 were Republicans, eight were Democrats.

          1. “How does a 3 year old commit a crime”

            For example, they walk into a store, they grab a candy, and they walk out without paying for it. It’s still a crime. You can say “we won’t prosecute it” but you still make the kid give the candy back and tell them it was wrong.

            “The DA can decide not to prosecute certain types of cases”

            They can make case by case decisions. They can’t unilaterally rewrite the law saying “this won’t be a crime”. They can say “we generally won’t prosecute low-level marijuana sales”. They can’t say “selling marijuana isn’t a crime anymore, and if you buy this permit from the DA’s office, you can sell as much as you want”. DACA did the second.

            “I don’t know what you’re talking about”

            Read up. There was a bill is place. It had bipartisan support. Then Obama helped push a poison pill amendment (the Dorgan amendment) to kill the compromise. Like was intended.

            1. “How does a 3 year old commit a crime”

              For example, they walk into a store, they grab a candy, and they walk out without paying for it. It’s still a crime.

              Try looking up mens rea in a dictionary.

              1. Try this: A woman breaks into your vacation home, and starts squatting there with her 3 year old. You find out and have them evicted.

                Do you have to let the kid stay? No, you do not.

                Mens rea means the kid can’t be punished, it doesn’t mean the kid gets to continue enjoying the stolen goods.

              2. Mens rea at its core means “knowing you’re doing something wrong”.

                And yes, almost all 3 year olds know that stealing from a store is wrong.

          2. Hmm.

            one-third (31 percent) were five or younger when crossing the border.

            The vast majority of DACA doesnt fit your description.

            Do you know even one fact on DACA.

          3. You also ignore the positive benefits of DACA. It’s like you’re fucking ignorant to basic facts.

          4. Have we abandoned the common-law principle that children below the age of reason are presumed incapable of forming the mens rea needed for a crime?

            1. Have we abandoned the principle that this doesn’t mean they get to continue committing the crime, or keep the ill gotten goods?

      2. Reputable way…

        DACA recipients can have a criminal record, just not one that includes the following: a felony, a significant misdemeanor, or three or more other misdemeanors.

        Very reputable.

      3. Let’s try another one… difficulty adapting in other countries..

        Fully a quarter of illegals who are eligible for the Deferred Action for Childhood Arrivals program can’t speak English at all — 46 percent can only speak it a little.

        Weird.

        Is everything you say wrong?

        1. JesseAz—right, the language laws! A flagrant violation!

          I probably ought to be deported myself. My grandfather was born in Minnesota. My mother was born in Minnesota. My mother spoke only Czech until she went to public school. Somehow, she escaped arrest and deportation. Admittedly, she was persecuted socially.

          She fled Minnesota, as soon as she was old enough. Luckily, at the time, Washington, D.C. was a de facto sanctuary city for people like her. So she became an administrative assistant to Bill Donovan, at the headquarters of OSS, during WWII. Later, she worked for the wife of John Foster Dulles, while he was Secretary of State. After that, she assisted Melville Bell Grosvenor, the editor of the National Geographic Magazine. Then, somehow, in inexplicable defiance of her childhood language deficiencies, she got her dream job, working for news anchor, Howard K. Smith.

          Right along, it’s been the same sordid story. Children who don’t speak English, living the lives of bad Americans. You would have hated her. And she would have hated you.

          1. It demonstrates that a substantial number of them aren’t assimilating.

              1. Do you dispute that those who emigrate should make an effort to learn the language of their new country, in that doing so results in a more stable and more prosperous political body?

                1. Swood, maybe not.

                  I do dispute the time frame some folks use to judge that outcome. In the case of my mother’s family, the first generation born in the U.S. continued to use Czech as their principal language. They lived and socialized in New Prague, Minnesota.

                  My grandfather, born in the U.S., spoke with such a thick eastern European accent that I could barely understand him, even in his old age. Until my mother showed me his birth certificate, I did not really believe he had not been an immigrant himself. For all that, he apparently prospered modestly in farming, cabinet making, and as an automobile dealer (Ford).

                  His children all started childhood speaking Czech. My mother’s story I have mentioned, except to say that her school-acquired English was, during my entire life, so purely native mid-Western that I, at age 16, was stunned to learn she had ever spoken anything else. She had a brother whose habit it became to recite Bryan’s Cross of Gold speech, while shaving. Another brother became the mayor of a moderate-sized mid-western city.

                  So all pretty assimilated. But only in the second U.S.-born generation (or the first, given that my grandmother was an immigrant). I suggest the tendency toward assimilation is strong in almost all immigrant families (religious traditions which value isolation may provide exceptions), but acts at different rates, and across generations, with the first U.S. born generation being the earliest in which to expect to see nearly-complete assimilation.

      4. A clear endorsement of double standards. Enforcement of laws is only for one kind of people. The Right Kind of People get a pass, of course.

      5. ——————————————————–
        Enforcing them against individuals who:

        a. Have done nothing wrong
        b. Are conducting themselves in a reputable and productive way
        c. Would, in many cases, have extreme difficulty adapting themselves to the countries they came from

        is not just disreputable, it is despicable.
        ——————————————————————————

        Maybe the parents would think twice about illegally entering and dragging their children here if they understood there would be the above consequences. Its the lack of consequences that has allowed illegal immigration to become such a problem.

      6. Enforcing them against individuals who:

        a. Have done nothing wrong
        b. Are conducting themselves in a reputable and productive way
        c. Would, in many cases, have extreme difficulty adapting themselves to the countries they came from

        is not just disreputable, it is despicable.

        First, those who violate the immigration laws have done something wrong. Are you saying that a law requiring immigrants to apply in an orderly manner for permission to immigrate is despicable since there must be no restrictions on immigration as long as the immigrants obey the law after crossing the border? One Gallup poll found that 147 million adults worldwide would like to migrate to the U.S. Not a problem?

  5. I’d say that if the immigration statutes are unconstitutional, the Pres can’t enforce them – it’s not a matter of discretion.

    OTOH, if they’re constitutional, the Pres *must* see to it that they’re faithfully executed.

    With a caveat – that if Congress didn’t give the Pres enough money to fully execute the immigration statutes, he has to make the best use of the money he was given, presumably by zeroing in on illegal immigrants who are also violent criminals, busting trafficking rings, and then if there’s money left, using it for run-of-the-mill violations.

    With this caveat to the caveat – that someone who’s violating the immigration statutes doesn’t have an enforceable expectation that his prosecution will be too low a priority to affect him. If he’s deported he’s deported.

    1. In fact, the DACA paperwork actually tells you that: Your presence in the country is still illegal, you’re benefiting from an act of discretion, and the government may change its mind and deport you at any time.

      1. Interesting…then what is the litigation about?

        1. Nominally, about whether the proper procedures were followed in abandoning the unconstitutional policy. Actually, about whether Republicans are allowed to stop doing anything Democrats start doing.

  6. The Trump administration’s main reason for rescinding DACA is thoroughly disreputable but entirely permissible — that DACA is bad policy.

    Really?! Pardon me Professor, but doesn’t immigration policy fall under Congresses bailiwick? POTUS Obama, while good-intentioned I am sure, rewrote immigration law in a manner Congress never, ever intended. How can that possibly be constitutional?

    1. Judges now create and implement our national policy…

  7. Another pointless post from the ambitiously self-promoting Josh Blackman.

    The non-delegation point is fascinating and all, but it seems like only the tail end of an argument that begins by establishing DACA as an exercise of legislative power. Which is not a point that I’m seeing made here.

    Instead, what I’m seeing is a weirdly convoluted and ultimately false inference from a clearly de-contextualized excerpt of a DOJ brief that doesn’t actually adopt the position you’re pushing, and then a longer blurb from a conservative columnist promoting your work.

    This is shit, Josh. Is all of your writing like this? The amount of work I have to do to make sense of what you’re saying isn’t worth the payoff.

    1. Part of DACA could perhaps be explained away as just a massive, organized exercise of prosecutorial discretion. Some parts of the program created affirmative benefits in defiance of the law, such as work permits for people illegally present in the country.

    2. The non-delegation point is fascinating and all, but it seems like only the tail end of an argument that begins by establishing DACA as an exercise of legislative power. Which is not a point that I’m seeing made here.

      The non-delegation point is that congress could not delegate to the president the authority, in his sole discretion, to replace a major part of the statutory immigration scheme with one of his own devising. Where do you get “establishing DACA as an exercise of legislative power”?

  8. Anyone who supports DACA should be forced to take these people into their own homes.

  9. Does this rise to the level of constitutional crisis we’re always being warned about ? Or because it’s the judiciary interfering it’s ok . I can just imagine if it was the opposite

  10. If Blackman keeps up describing Trump policies as “thoroughly disreputable” (virtue-signaling dictum here), he’ll be on his way from being an assistant professor at some third or fourth tier law school to being a full professor at a second tier or higher school. (For the record, I think he deserves to move up on the merits of his work, but the virtue signaling will certainly speed things up.)

    1. The “thoroughly disreputable” language was in a quote of a George Will article.

  11. How can prosecutorial discretion, an inaction in itself, create an affirmative program that grants benefits and spends federal dollars?

    Further, it should be offensive to any person who loves this country the notion that an executive order by one President can bind all future Presidents.

  12. What isn’t mentioned is the Trump adminstration declared that if Congress passed a bipartisan DACA fix he would sign it and make it the legitimate law of the land.

    Congress declined, at least partially because they like having as a political issue, for both fund raising and turning out the base.

    This is clearly the fault of both Congress and the courts that it’s still an issue.

    1. Actually, at this point it’s all the fault of the courts that it’s still an issue; If the courts hadn’t humored people suing to stop DACA from being shut down, the whole matter would have been resolved by now.

      Maybe not the way people who thought DACA was a good idea would have preferred, but resolved.

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