President Trump and DHS Secretary Dukes Made it (Nearly) Impossible to Defend DACA Rescission

SCOTUS can still uphold the rescission if it agrees that Attorney General reasonably concluded that DACA was unlawful

|The Volokh Conspiracy |

In a 2017 letter, Attorney General Sessions concluded that the courts would likely find DACA illegal. Acting Homeland Security Duke relied on that legal determination (as she was bound to do by statute), and directed that that the program should be wound down. Neither the Attorney General's letter, nor the Secretary's letter, justified the rescission on any obvious policy grounds.

At the time, I struggled to understand this rationale: why would the administration handcuff DOJ's defense of the rescission? If the administration simply stated that the policy was no longer desirable, then most legal challenges would fail. (The administration still would have had to deal with 5th Amendment equal protection claims, but those counts were always a long shot.)

A new book sheds light on this quandary: "Border Wars: Inside Trump's Assault on Immigration," by Julie Hirschfeld Davis and Michael D. Shear. The authors, with Adam Liptak, published a new article in the Times that recounts the inner-workings of the DACA discussion.

Here is a brief summary. Immigration hardliners pushed President Trump to wind down DACA. But Trump was sympathetic to the Dreamers, and did not want to take responsibility for the decision. Instead, he pressured Attorney General Sessions to lead the charge. He concluded that the policy was unlawful, and the courts would likely enjoin it. Secretary Duke refused to argue that DACA was a bad policy. As a result, the entire case turned on Session's determination of DACA's legality–a question on which Duke was bound. And Sessions knew that this decision would make it very difficult to litigate the case.

Here are some of the excerpts from the article:

 When Attorney General Jeff Sessions appeared before news cameras at the Justice Department in early September 2017 to announce that President Trump was ending deportation protections for young undocumented immigrants, he knew the administration had left itself more legally vulnerable than it should have.

At a contentious meeting in the White House Roosevelt Room several days earlier, Elaine C. Duke, then the acting secretary of homeland security, had broken with the rest of Mr. Trump's team and balked at its demand that she issue a memo ending Deferred Action for Childhood Arrivals, the Obama-era program known as DACA that shields immigrants who were brought to the United States as children.

Ms. Duke was deeply bothered by the idea that she could be responsible for deporting hundreds of thousands of young people from the country they considered their own. And she did not want her name on the policy rationales put forth by Mr. Sessions; Stephen Miller, the president's powerful immigration adviser; and others who argued that the program encouraged new waves of illegal immigration and was an undeserved amnesty.

She eventually relented under merciless pressure. But her refusal to cite their policy objections to the program is now at the heart of what legal experts say is a major weakness in the government's case defending the termination of the program, which will be argued on Tuesday at the Supreme Court.

The President's unwillingness to take a difficult stance, and the fact that he did not have a confirmed DHS Secretary in place who would follow his directives, has handcuffed DOJ throughout this entire process. Now, Andy Pincus explains that counsel for respondents have used these internal processes to shape their arguments.

Last week I noted that DOJ finally articulated what the "constitutional defects" were in DACA. This argument, our brief maintains, supports the Attorney General's reasonable conclusion that DACA was unlawful.

 

NEXT: Today in Supreme Court History: November 11, 1975

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  1. It’s a pretty terrifying statement about the judiciary, if “This program is unconstitutional” is a weaker argument than “This program is a bad idea.”

    But was anybody actually confused about this? Trump didn’t think DACA was a bad idea, he just thought it should have been done legally, though legislation. That’s a respectable position.

    And would they really want to have gone into court with a case based on the administration thinking DACA was bad policy, with Trump having made public statements about wanting Congress to legitimately enact it?

    1. “This program is unconstitutional” is a weaker argument than “This program is a bad idea.”

      It’s “We *think* this program will be found to be unconstitutional.” It’s perhaps a non-obvious, but important, distinction. Law is a careful thing.

      “Trump didn’t think DACA was a bad idea, he just thought it should have been done legally, though legislation.”

      Citation needed (cite specific legislation Trump has backed on this).

      1. Actually arguments about constitutionality are very serious. Potentially more troublesome are cases where the judges issue opinions on policy in the process of overriding the executive branch, when the judicial branch is given no such power. That’s why we have a democracy, to vote for people to create policy.

        At least two of the many border wall cases included a sentence, “And anyway I judge the administration’s policy as bad.” Importantly, not as a constitutional violation (e.g. animus), but as simple policy disagreement.

      2. With you on this one. I support him on his policy, but I think Trump’s position is to get DACA to be passed legally because he knows it won’t be. He wants to force the issue and get politicians to own up to the absurdity of legalizing ~1m and enabling mass chain migration and demographic replacement that will accelerate the decline of Constitutional governance and adherence to past principles.

    2. It’s a pretty terrifying statement about the judiciary, if “This program is unconstitutional” is a weaker argument than “This program is a bad idea.”

      When advancing legislation one must speak the language of legislators. The Supreme Court has decided that constitutional questions are useful only as a means to justify legislation.

    3. DACA, as implemented, is a bad idea. The proof required for whom was here prior to age 16, already too high a threshold, is too low, they don’t need to be productive by our modern economy’s standard, and there is no bar to their popping out “citizen” children who can then sponsor them at age 18.

    4. Trump didn’t think DACA was a bad idea, he just thought it should have been done legally, though legislation. That’s a respectable position.

      Bullshit, Brett. He did nothing to get it passed, just used it as a bargaining chi, and when he didn’t get everything he wanted he refused to back DACA. That’s not what you do with something you think is a good idea.

      Frankly, I doubt he gives a ff about DACA either way, since neither empathy nor rule of law seem to have the slightest importance to him. He saw it as useful for bargaining, maybe, and also as something he could oppose to rile up the bigots.

      1. Trump has this weird idea that the legislature’s job is legislating.

        1. No he doesn’t.

          He’s not a lawyer or political scientist with nuanced views of how government ought to function and all sorts of procedural rules he holds dear.

          He has demonstrated no reluctance to issue executive orders.

          I understand you’re enamored of the man, but I would have thought you had some limits.

          1. Yes, I realize that you think he’s some kind of lumbering, mindless animal, who just stumbles from victory to victory through the sheer power of his awfulness. I won’t bother pointing out again the remarkable irrationality of that view of the man.

            Yes, of course Trump issues executive orders. That’s how Presidents, all of them, do things. They want Iraq invaded, they order it done, they don’t grab an assault rifle, and start running towards Iraq shouting, “Follow me, boys!”.

            What he has demonstrated a reluctance to do, is to try to do Congress’ job of legislating for them.

            1. “Victory to victory.”

              What are these glorious victories?

              Getting a tax cut through a Republican Congress? Yeah, that’s a steep hill. You or I could manage that in our sleep.

            2. Orange man bad. That is the only logic Trump’s opponents feel they need.

    5. It’s a pretty terrifying statement about the judiciary, if “This program is unconstitutional” is a weaker argument than “This program is a bad idea.”

      Josh isn’t doing the peanut gallery any favors here by describing the arguments in the highly misleading way that he has. But suffice it to say that none of this is due to an issue with the judiciary. These arguments stand/fall according to legislation that binds the executive’s ability to create and rescind administrative regulations. It is, in other words, just the judiciary following duly-enacted law.

      So, first of all: the DOJ isn’t arguing that DACA is unconstitutional. The DOJ is arguing that DACA was not within the president’s authority to implement, under applicable statutes. The reason the DOJ is not arguing that DACA is unconstitutional is because doing so would amount to constraining the president’s constitutional authority to do any number of things, like regulate (or selectively deregulate) immigration, drugs, carbon emissions, and so on.

      Second: arguing that DACA was not statutorily authorized could be a perfectly valid basis for rescinding DACA… if it is the case. That’s the weakness here. Courts feel no reluctance to come to their own legal conclusions about what the law says or authorizes, so if it turns out that DACA is within the president’s authority, in the courts’ view, then Sessions’ argument falls completely apart.

      Third: The reason all of this matters is that the APA limits the president’s authority to just change regulations on a dime. We have a system of laws, not of men, after all. The president can rescind policies he doesn’t like, but he has to explain why he is doing so, and explain how doing so is consistent with his obligations to see to it that the law be faithfully executed. So if he wants to rescind DACA because it’s not authorized, he has to make that case. If he wants to rescind it because it’s bad policy, he can make that case, instead.

      So, finally, the reason why it would have been easier to defend the DACA rescission by describing it as “bad policy” is that the courts would give the president a fair amount of leeway for making that assessment. That would no longer be a pure question of law – i.e., is DACA statutorily authorized – but rather one of fact and policy that the courts generally view as within the president’s fairly exclusive purview. The president could say, “DACA encourages immigration,” and as long as that’s supported by some kind of plausible evidence, it would carry a certain weight in the courts.

      1. “So, first of all: the DOJ isn’t arguing that DACA is unconstitutional. The DOJ is arguing that DACA was not within the president’s authority to implement, under applicable statutes. ”

        Rather, they are arguing that DACA, the actual program created by executive fiat, is unconstitutional BECAUSE it wasn’t within the President’s authority implement under applicable statutes. Even if it would have been constitutional if enacted by Congress.

        “Courts feel no reluctance to come to their own legal conclusions about what the law says or authorizes, so if it turns out that DACA is within the president’s authority, in the courts’ view, then Sessions’ argument falls completely apart.”

        No, both the courts and the Executive have independent obligations to assess the constitutionality of actions, and if the Executive concludes an action is unconstitutional, and it is discretionary rather than mandated by statute, the fact that the courts have a more expansive view of Presidential authority than the President can’t obligate him to violate his oath of office.

        Only if DACA was statutory in nature, would the courts concluding it was also constitutional invoke the President’s take care obligation, forcing him to implement it over his own misgivings.

        Finally, if a program isn’t properly driven by statutory law, but instead represents a decision by the executive to implement a law Congress refused to pass, it’s questionable whether the terminating it actually falls under the APA, which applies to lawful programs, not usurpations of power.

        1. Rather, they are arguing that DACA, the actual program created by executive fiat, is unconstitutional BECAUSE it wasn’t within the President’s authority implement under applicable statutes.

          You’re just really committed to confusing the issues here.

          No, both the courts and the Executive have independent obligations to assess the constitutionality of actions,…

          The courts have an obligation to ensure that the president, when revoking regulatory actions, abides by the APA, to the extent it applies. In order to rescind DACA, under the APA, the president must provide a basis for doing so that is not “arbitrary and capricious.” The only rationale the president has so far provided for rescinding DACA is a purely legal one – that DACA was never statutorily authorized in the first place. The courts will not defer to the president’s judgment on that, because it is an inherently legal question. However, had the president made a more factual or policy-based argument, he would have been granted more deference, and may have succeeded.

          Finally, if a program isn’t properly driven by statutory law, but instead represents a decision by the executive to implement a law Congress refused to pass, it’s questionable whether the terminating it actually falls under the APA, which applies to lawful programs, not usurpations of power.

          This is completely circular.

          I’d forgotten why it is completely futile to even try to engage you on these questions.

  2. DACA, amnesty, and free health care for illegals are tools of the left to destroy America with socialism. We have 30 million illegals filling our roads, schools, hospitals, and prisons. Trump could fix this with an executive order today directing the DOJ to charge employers of illegals under the RICO Act and fine them one million dollars and one year in federal prison for each illegal employee.

    1. “DACA, amnesty, and free health care for illegals are tools of the left to destroy America with socialism.”

      Indeed, it’s part of *their* plan which also involves a fleet of black UN helicopters!

    2. Yes, and the damage is already irreversible. We need a Constitutional amendment to strip everyone granted citizenship under the 1965 Immigration Act of that citizenship.

      1. That’s silly. For all the demographic transformation caused the the 1965 Act, this nation’s problems are almost wholly caused by white liberals.

        1. Yes, the generals are white liberals, and their third world voters are the foot soldiers.

          1. Good luck on getting that amendment ratified…when many of the post 1965 people are voters, along with their kids and grand kids. Pie in the sky stuff there.

            1. It won’t get ratified without a civil war. Much the way the 14th Amendment was ratified.

              1. And remember what happened to the 14th amendment after the southern states got to vote again? Rendered moot by a bad Supreme court decision for generations.

                The basic problem with saying we’d ratify it after a civil war, is that as soon as you go off a war footing, and try to return to peacetime, everything gets crazy again.

                I think a civil war is coming, sooner or later, but I don’t expect to like what the US looks like after it, even if my side wins. The left might lose, but they wouldn’t stop being present.

                1. What’s the connection between Slaughterhouse and southern states voting again? I admit I’m ignorant on this point.

                  But yes, I agree with you generally. The hope would be that, if my side wins, the traditionalist conservatives recognize the mistakes of the past and don’t start the problem anew by letting women vote, pretending that all races are equal in ability and temperament, and so forth. Otherwise, the only solution is either separation or mass extermination.

                  And the problem with mass extermination is that the people willing to engage in aren’t going to be willing to be benevolent after the fact

                  1. The Supreme court is downstream of the elected branches, it’s incapable of maintaining a position the elected branches aren’t, on some level, comfortable with. Even controversial rulings like Roe or Obergefel tend to survive because members of Congress approve of them, and merely pretend to object for public consumption.

                    The Reconstruction amendments were ratified while the Southern states were still in a state of occupation, and particularly the 13th and 14th were not freely ratified in the South. If this state of affairs had continued, the Slaughterhouse decision could have been overturned by a new constitutional amendment, and the votes would even have been available to change the composition of the Court by impeachment to deter a repeat.

                    But by the time of the Slaughterhouse decision, the Southern states were starting to get out from under military occupation, and had enough political clout to protect the Slaughterhouse Court, and make sure no new amendments could be originated or ratified.

                  2. Are you actually advocating civil war? If so, what is the max number of lives you are willing to expend on the chance that your side prevails? Five million? Thirty million? Fifty million? More?

                    1. No, I’d much prefer to peaceably separate. But the left won’t let the right go, as the left knows that the right produces everything. And if the choice is civil war or living as a chattel slave, then yes, I’m advocating civil war, and as far as the number of lives, that’s always in the choice of the aggressor.

                    2. Basically what RWH is saying here, though we don’t always agree.

                      I don’t *want* a civil war. Nobody wins a civil war, some people just lose it worse.

                      But if the left won’t permit anyone a separate peace, if the only thing they’ll settle for is total victory, what alternatives are there but war or subjugation? It’s not like the left is, for instance, allowing the right its own institutions. Gab got deplatformed and forced into the dark web, every baker has to bake the cake, the Sisters of Mercy have to pay for birth control…

                      And it’s not like the left has some pre-defined program that you might think will chafe a bit, but you could tolerate. The left has a progressive program, a constantly moving target. You can’t say, “Well, OK, I guess I can stomach this, though I don’t like it.” because tomorrow they’ll hit you with something new and worse.

                      It’s either agree to submit to a blank check, or fight. So it’s ultimately going to come to a fight, much as I hate it.

                    3. Right. With respect to the gaystapo, first it was “Don’t arrest us for sodomy.” Then it became “Let us get civil unions so we can visit our ‘partners’.” Then “We deserve full marriage rights.” Then “Bake us a cake, or else.” These people will never stop until the West is destroyed.

                  3. I remember Falling Down, where people asked if you were supposed to feel a catharic rush as Michael Douglas resists the stupidities of modern society.

                    But it becomes apparent as the movie unfolds he is going further than that.

                    Anyway, at one point some guy hides him from the police, and shows him his Nazi souvenir room, and wonders rhetorically how many Jews do you think this (empty can of) Zyklon B killed.

                    Douglas gets pissed off, this isn’t what his anger is about at all, and trashes the place, another scene of wreckage on his descent.

                    I think it’s more than just wacky web site opportunists leaping onto Trump here. I think it’s trolling as well. Someone, for political reasons, is trying to associate in the mind any Trump support with Nazi support to discredit by toxic association.

                    I have no proof. It just seems off.

                2. Are you suggesting that things would have been just hunky-dory for blacks in the South had the 14th Amendment not been adopted?

                  You sure do bring this up a lot.

                  1. I don’t know where you get that from.

                    Look, regardless of whether you think the 13th and 14th amendments were good ideas or not, the objective, historical truth is that the Southern states ratified them at gun point. Literally in some cases, actual armed soldiers present on the legislative floor while they held the vote.

                    That historical fact doesn’t magically vanish just because you think they were good amendments.

                    My point here is that if good triumphs over evil by force of arms, and doesn’t actually KILL evil, evil remains. And if this happens within a democracy, and the democracy is at some point going to end the state of war and return to being a functioning democracy, (Rather than just pretending it is, as during Reconstruction.) at some point evil gets a vote.

                    So a civil war in a democracy doesn’t really settle things the way you might think it would, as Jim Crow after the Civil war demonstrates.

          2. the generals are white liberals, and their third world voters are the foot soldiers

            Oh, dear, it looks like you’ve stumbled into another antisemitic trope. Strange how often that happens to people like you!

            1. Come again?

              1. Just switch the demographics a bit:

                African-Americans and other minorities are the tools used by the so-called “Jewish puppeteers” to unseat the white race from the proverbial throne, white nationalists believe.
                https://www.ajc.org/news/after-poway-pittsburgh-synagogue-shootings-heres-what-jews-need-to-know-about-white-supremacy

                Google ‘blacks as tools of the Jew’ or something like that for more.

                1. By your standard, no one can ever be accused of being a tool of anyone else.

                2. A puppetmaster group using minorities as their footsoldiers doesn’t come up that often.

                  Except for you and white supremacists.

    3. I like the idea of focusing on employers, but I also want to highlight this posters’ filling our roads, which is some pretty good crazy.

  3. Article starts out with a false premise. Trump wasn’t sympathetic to the Dreamers, as much as he was using them a bargaining chip to get Dems in Congress to provide funding for the wall or other immigration reforms.

    1. True.

      And in typical fashion, when his counterparties thought they had a deal, he welshed.

      1. Is that how you frame it? One should always be ready to walk away anyway. The Dems blanched on funding the wall, but they were willing to give some sort of deal that left the door open to amnesty.

        1. The Democrats offered $25 billion in border security funding in exchange for a 10-12 year path to citizenship for Dreamers.

          Trump and Schumer disagree over whether Trump took the deal. Regardless, Kelly later called Schumer to tell him it was not acceptable.

          One should always be ready to walk away anyway.

          From a negotiation, but not from what one has already agreed to.

          1. Border security funding that didn’t include the wall.
            And it’s not a deal until the ink is on the paper, thus it was a still a negotiation.

          2. “$25 billion in border security funding”

            Not funding [i.e. actual appropriation] but authorization [i.e. a promise to pay subject to future appropriation]. In other words, illusory.

            1. The usual: Amnesty today, enforcement tomorrow.

              Nobody who actually wants the enforcement has fallen for that scam since the Reagan amnesty.

      2. Bernard, I have kin from Wales, and so, object.

        1. I was kinda wondering when that response would show up. At least he didn’t say that the Dems tried to “Jew him down” over the cost of the wall.

          1. I am fairly sure that BrotherMoves was being sarcastic, as was I. But then again, this is the internet.

            1. Maybe. Just trying to be polite.

              1. Both Kalak and Sarcastr0 are correct,
                and your response appreciated.

            2. Didn’t cost Bernard anything, so why not err on the side of courtesy?

            3. That’s very kind, though I believe the complaint about “welsh” was pure trolling. If I’m wrong correct me.

              1. And do you know what “reneged” sounds like? If you’re really sensitive to dog-whistles, I mean?

              2. Could be, Eddy.

                If so, it wasn’t either the first or last time I got fooled.

  4. It is fairly obvious that DACA esque policies encourage illegal immigration as people see that there are seldom any consequences for violating the law. Incentives matter.

    Now not only is there an absence of consequences but the potential to reap great rewards, perhaps even more than actual citizens! The frontrunners in the democratic party are promising free social services to anyone who comes over.

    This would be remarkable if one hadnt been following their electoral strategy over the last several decades. They can zip it about basic voter id requirements being suppression when they are literally trying to permanently disenfranchise large portions of the population

    On the DACA issue specifically, while these particular individuals may be sympathetic, if you dont enforce the law here I dont see when you start to

    1. *Not literally disenfranchise

    2. Right. The demographic tipping point has already been reached in Virginia, and will be in North Carolina and Florida soon too. Now you know why I eagerly await the civil war that is coming.

  5. Trump is weak on DACA and immigration.

  6. I don’t understand why the administration’s opinion of the constitutionality of the prior policy matters. From the courts’ point of view, the only issue is new administration, new policy. The Executive can obviously take care that the laws be strictly enforced. Whether or not the Obama administration ever had the prosecutorial discretion to relax enforcement as much as it did, surely the Trump administration has discretion to tighten it.

    Whatever one thinks of the policy here, this matter isn’t the courts’ business. And courts shouldn’t grasp after red herrings and irrelevant opinions to try to take control of something that isn’t their business.

    I argued DACA was within the Obama administration’s discretion at the time. But the same discretion lets the Trump administration end it if it wants. That should end the matter so far as the courts are concerned.

    1. According to the OP, the administration did not want to make that argument.

      Elaine C. Duke, then the acting secretary of homeland security, had broken with the rest of Mr. Trump’s team and balked at its demand that she issue a memo ending Deferred Action for Childhood Arrivals, …..

      Ms. Duke was deeply bothered by the idea that she could be responsible for deporting hundreds of thousands of young people from the country they considered their own. And she did not want her name on the policy rationales put forth by Mr. Sessions; Stephen Miller, the president’s powerful immigration adviser; and others who argued that the program encouraged new waves of illegal immigration and was an undeserved amnesty.

      She eventually relented under merciless pressure. But her refusal to cite their policy objections to the program is now at the heart of what legal experts say is a major weakness in the government’s case…..

      1. “deeply bothered by the idea that she could be responsible for deporting hundreds of thousands”

        Then she should have resigned.

        Another bureaucrat with delusions of grandeur, like so many currently conspiring against Trump. Swamp indeed.

    2. I thought DACA conferred a legal ability work and receive other benefits. If so, then perhaps that goes beyond prosecutorial discretion?

  7. she did not want her name on the policy rationales put forth

    Given the left regularly engages in violence against people who have different policy ideas than them, is this really surprising?

  8. Given that Obama himself once argued that the didn’t have the power to enact a DACA-style executive order, this argument seemed like a safe bet.

    However, the whole issue is moot anyway. Bottom line is, if Obama had the power to enact it, Trump has the power to rescind it. If Obama didn’t have the power to enact in the first place, then it’s automatically rescinded. Either way, no DACA.

    1. I think you are correct if the administration had made a policy argument as to why they were rescinding DACA. But as this post points out, they didn’t make that argument. Instead, they put all of their eggs into the “DACA wasn’t legal in the first place” argument.

      1. The constitutional argument IS a policy argument, in a way: The executive branch have an independent obligation to assess the constitutionality of policies, and they aren’t obligated to pursue a (Discretionary) policy they think unconstitutional just because the courts think it’s OK.

        1. The constitutional argument IS a policy argument, in a way

          The opposing argument seems to be that Trump’s order rescinding DACA will be struck down as arbitrary and capricious if the reason given is objectively false, and the lower courts determined that the reason given (illegality) is objectively false.

          1. During the Trump era, leftist judges have intercepted “arbitrary and capricious” to mean “anything the judge doesn’t like.”

  9. The referenced Andy Pincus article says that “the best legal course for the Administration would have been to issue a new agency decision based on the exercise of policy discretion” but that they didn’t want to do this because “it would require the Administration to take responsibility for eliminating DACA, and prevent it from invoking the blame-shifting argument that the Obama Administration put in place an unlawful program,” DACA being popular with both Democrats and Republicans. Also, “a new policy rationale would have undermined all of the prior statements by President Trump and others claiming that they wanted to protect DACA recipients but needed Congress to act in order to do so.”

    So why not base the policy argument on the president’s belief that it is bad policy for such an action to be taken by executive order because such actions should be done by legislation, and that in the president’s opinion rescission of Obama’s executive order provides exactly the stimulus necessary to break the logjam in Congress? Maybe an approach like this will be followed if Trump loses in the Supreme Court. I’m not sure I buy the argument that the rationale previously given (illegality of the executive order) convinced any supporters of DACA that Trump’s desire to keep DACA in place is unconditional. Everybody knows that he’s willing to keep it only in exchange for other immigration law concessions.

    1. Actually, it appears that this argument was made in the government’s petition for cert under the heading “The rescission is reasonable in light of DHS’s additional and independent policy concerns”:

      Those reasons include the agency’s determination that (1) “DHS should enforce the policies reflected in the laws adopted by Congress and should not adopt public policies of non-enforcement of those laws for broad classes and categories of aliens under the guise of prosecutorial discretion”; (2) “DHS should only exercise its prosecutorial discretion not to enforce the immigration laws on a truly individualized, case-by-case basis”; and (3) “it is critically important for DHS to project a message that leaves no doubt regarding the clear, consistent, and transparent enforcement of the immigration laws against all classes and categories of aliens,” especially given that “tens of thousands of minor aliens have illegally crossed or been smuggled across our border in recent years.” App. 123a-124a. Respondents may disagree with these assessments, but they cannot be dismissed as irrational.

      If the respondents are able to convince the Supreme Court that this rationale should not be considered since it was not presented originally, they’ll probably start over with this as the primary rationale.

  10. My side won the culture war but still isn’t done vanquishing conservatives. AMA

    1. You really haven’t.

  11. Ok, Ok, I’m starting to wake up and smell the coffee and get what this about. It’s about Department of Commerce v. New York, right?

    The Administration indeed gets to change policy if it wishes to. But the APA requires it to state its reason for doing so, and Department of Commerce v. New York says the courts will hold the administration to the reasons it stated.

    Why is prosecuratorial discretion even subject to the APA? If a prosecutor gives written reasons for not prosecuting someone, does he then have to prosecute if the courts think those aren’t his real reasons or they aren’t good enough?

    1. Individual prosecutorial discretion wouldn’t be subject to the APA. The problem is that DACA wasn’t individual prosecutorial discretion. It was systematic, organized prosecutorial discretion implemented as a formal program.

      And formal programs are subject to the APA, even if using the APA to tell a President he can’t stop doing something he thinks the previous President was violating the Constitution by doing seems a bit questionable.

      The obvious point that has to be made is that the APA should apply to formal programs created pursuant to enacted law, not created in defiance of it.

      1. But the basis for the legality of Obama’s policy, his authority to enact DACA, arose from prosecutorial discretion. He wasn’t interpreting the statute. He was exercising discretion to sometimes ignore it. Why does formalizing a discretionary function change it?

        If a president uses a formal procedure to decide what church to go to, that obviously doesn’t bind future precedents. The procedure and written policy would be surplussage, window dressing, legally irrelevant, a meaningless piece of paper.

        Why is this different? Why is having a formal written prosecutorial discretion policy legally different from making the same set of prosecutorial discretion decisions individually? What gives presidents the right to bind their successors’ discretion just by writing their thoughts down and going through certain formal rituals? If the subject isn’t APA material in the first place, Merely going through APA-like rituals doesn’t turn it into APA material.

        In enacting the APA, Congress didn’t intend to create a cargo cult.

    2. According to the government, the APA precludes review of agency actions that are “committed to agency discretion by law,” resulting in a presumption of nonreviewability. They cite the Supreme Court in ICC v. Locomotive Eng’rs for the proposition that an otherwise unreviewable agency action does not “become reviewable” because “the agency gives a ‘reviewable’ reason.” In that case, the ICC’s decision not to reconsider a prior decision was therefore unreviewable, even though the agency based that denial on an interpretation of its legal obligations under the Railway Labor Act. The Supreme Court included among agency actions “committed to agency discretion by law” the discretion to find “facts and interpret statutory ambiguities.”

  12. The Court should ask the basic question: Are the immigration statutes constitutional? If so, DACA is *not* constitutional, since it undercuts enforcement of constitutionally-valid statutes. What happens to taking care the laws are faithfully executed? It says “faithfully” not “fitfully.”

    1. When, in 1986, the Supreme Court upheld consensual sodomy laws in Bowers v. Hardwick, it noted that prosecutions for conduct in private homes had been very rare in the previous several decades. Was every local prosecutor who didn’t prosecute during this time in violation of the constitution, since this action undercut the enforcement of constitutionally valid statutes?

      1. I can’t speak for all prosecutors, but I expect they had difficulty proving what happens in private homes between adults – the Hardwicke case only came up when the cop concocted an excuse to barge into the guy’s apartment for unrelated reasons. The Lawrence case was the cops responding to a false fire alarm.

  13. Professor Blackman,

    There’s a very good reason the Trump administration is making this argument, and it’s because of the future.

    It’s without a doubt that if the Trump administration chose as a policy matter to end DACA, they could do so. A short series of memos describing why, as a policy choice, they believe DACA to be a bad policy, would be very effective. However, there’s a problem with this strategy. The problem is, any future administration could reverse course, and now say DACA is a good policy, and reinstate DACA.

    However, a Supreme Court decision saying that such a broad, sweeping policy was unconstitutional would have rather more long-lasting effects. Then a future administration would not be able to reinstate DACA by executive order. It would need to be a law. By upholding a policy that it needs to be discontinued because it’s unconstitutional, it effectively ends DACA until a law is done.

    Furthermore, on the off chance that the Supreme Court says “yep, no constitutional issue here”, Trump and company can then look at the issue again, and make a policy decision if they want to stop DACA. (As a “bonus” if DACA was ruled constitutional for some reason in its broad, sweeping form that takes in hundreds of millions in revenue and allocates it, all without any Congressional law, well, I suppose that revenue could be reallocated towards building a wall. Right?)

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