DACA

Why DACA Is Legal

The Trump administration's justification for rescinding DACA relies heavily on the claim that the program is illegal. But it's not.

|The Volokh Conspiracy |

Tomorrow, the Supreme Court will hear three consolidated cases challenging the Trump administration's decision to rescind DACA, an Obama administration policy suspending deportation of some 800,000 undocumented immigrants who came to the United States as children. DACA allows such migrants (often referred to as "dreamers," after the Dream Act, which failed to pass Congress) to stay in the U.S. as long as they arrived in the  country when they were 15 years old or younger, were 30 or younger when the program began in 2012, have not been convicted of any crimes as of the time they apply for the program, and have either graduated from a U.S. high school, are currently enrolled in school, or have served in the armed forces.

As co-blogger Josh Blackman (a longtime critic of the legality of DACA) points out, the Trump administration's position in these cases relies heavily on the notion that DACA had to be rescinded because it is itself illegal. For political reasons, the president did not want to  give the impression that he actually favors deporting the Dreamers (which would be an extremely unpopular position). Thus, he decided to hide behind the theory that his hands are tied by legal considerations. As Josh recognizes with admirable candor, this framing of the issue makes the administration's policy "nearly impossible to defend." I agree, with one slight modification: If this really is the only justification, I would strike out the "nearly" in that sentence.

While the president's motives for relying on this argument were probably political, I don't doubt that many conservatives, including some administration officials, sincerely believe that DACA is illegal. But, regardless of the reasons for putting it forward, the claim that DACA is illegal is badly wrong. I summarized the reasons why in a 2017 post from which much of what follows is adapted:

Quite simply, DACA is within the scope of presidential authority because it does not change the law, and does not legalize anything that would otherwise be illegal, without specific authorization from Congress.

Critics attack DACA on the grounds that Obama lacked legal authority to choose not to enforce the law in this case. This critique runs afoul of the reality that the federal government already chooses not to enforce its laws against the vast majority of those who violate them. Current federal criminal law is so expansive that the majority of Americans are probably federal criminals.

That includes whole categories of people who get away with violating federal law because the president and the Justice Department believe that going after them isn't worth the effort, and possibly morally dubious. For example, the feds almost never go after the hundreds of thousands of college students who are guilty of using illegal drugs in their dorms.

John Yoo contends that there is a difference between using "prosecutorial discretion" to "choose priorities and prosecute cases that are the most important" and "refusing to enforce laws because of disagreements over policy." But that distinction makes little sense. Policy considerations are inevitably among the criteria by which presidents and prosecutors "choose priorities" and decide which cases are "the most important."

One reason the federal government has not launched a crackdown on illegal drug use in college dorms is precisely because they think it would be bad policy, and probably unjust to boot. It did not even do that during the reign of Attorney General Jeff Sessions, the hard-core drug warrior who also initiated the rescission of DACA on the grounds that the program exceeds the bounds of executive discretion.

Yoo and others also argue that prosecutorial discretion does not allow the president to refuse to enforce an "entire law," as opposed to merely doing so in specific cases. But Obama has not in fact refused to enforce the entire relevant law requiring deportation of illegal immigrants. He has simply chosen to do so with respect to people who fit certain specified criteria that the vast majority of undocumented migrants do not meet.

Most of the points I made in this 2016 article defending the legality of Obama's later DAPA policy (which was rescinded by Trump in June 2017) also apply with even greater force to DACA, since the latter is a much more limited program. Wide-ranging presidential enforcement discretion is unavoidable in a system where there is so much federal law and so many violators that the executive can only target a small fraction of them. In the 2016 article, I explain why presidents have the power to exercise their discretion systematically as well as on a "case-by-case" basis.

Systematic exercise of discretion by the president should be particularly attractive to conservative believers in "unitary executive" theory, which holds that the president should have nearly unlimited authority to set policy priorities for his subordinates in the executive branch. Often, issuing systematic instructions may be the only way for the president to exercise effective control over the sprawling executive law-enforcement apparatus and ensure that it is following his policy priorities.

I myself have growing doubts about the validity of unitary-executive theory. In my view, Congress should, at least in many instances, be able to constrain presidential control over executive officials. But even if that is true, Congress has not in fact adopted any laws requiring the president to prioritize deportation of the "Dreamers" over other law-enforcement goals, or forbidding him from issuing categorical instructions giving absolute priority to other objectives.

The Trump administration and other DACA critics claim that the policy goes beyond enforcement discretion, because it offers "affirmative benefits" to recipients, such as the right to work legally in the United States, and accrue "lawful presence" time in the US. But the policy of giving DACA recipients work permits actually does have congressional authorization, based on a 1986 law that specifically permits employment of aliens who are "authorized … to be employed … by the attorney general."

The grant of "lawful presence" to the immigrants covered by DACA is perhaps the most questionable part of the policy. But while this may seem like a big deal, in reality "lawful presence" does not actually legalize the presence of any otherwise illegal migrants. For the most part, it merely reiterates the executive's discretionary decision not to deport the migrants covered by the order.

It does, however, also allow them to accrue time for the receipt of Social Security and Medicare benefits that, however, they are unlikely to ever actually collect unless their status is genuinely legalized at some point in the future, and they remain in the US until after retirement age.

Moreover, the "lawful presence" element of DACA  could easily have been excised separately, without affecting the other, far more important aspects of the policy. If "affirmative benefits" were the true target of Trump and Jeff Sessions' ire, they could easily have taken this approach. But they instead chose to rescind the entire program.

The fact that DACA is an exercise of executive enforcement discretion also undermines Josh Blackman and Ilya Shapiro's creative arguments that it is illegal under "non-delegation" principles, or because it attempts to resolve a "major question" that Congress would not have left to executive determination.

Like Josh and the "other" Ilya (see my handy guide to distinguishing the two of us), I believe the Supreme Court should do more to enforce the "non-delegation" doctrine, which prevents Congress from engaging in excessive delegation of legislative authority to the president. But enforcement discretion is not a legislative power. It's an inherent power of the executive itself. Thus, there is no delegation involved, and therefore no reason to worry that too much power has been delegated.

The same point applies to the "major question" canon, which holds that courts should not interpret federal laws to leave to the executive important decisions about the scope of what is or is not banned by the statute in questoin. The "major questions" at issue are questions about what sort of conduct is legal under the statute, not which lawbreakers will be prosecuted and which let off the hook by enforcement discretion.

Under the doctrine, the executive is denied the power to decide "major questions" about the meaning of a law. But DACA does not do that. It concerns enforcement priorities as between different violators of a specific federal law. It does not offer any new theory about the meaning of that law, much less resolve any "major question" about that meaning.

The extent of presidential discretion over law enforcement revealed by DACA does raise troubling issues. In a world where federal law is so extensive that not only undocumented immigrants, but most native-born Americans, have violated federal law at one time or another, the executive's ability to pick and choose which of the many lawbreakers to go after is a menace to the rule of law.

But that menace won't be ended by getting rid of DACA. Doing so will merely shift the discretion in question to lower-level officials, not eliminate it. The only effective way to truly deal with the problem of excessive executive law-enforcement discretion is to cut back on the immense extent of federal law itself.

The Trump administration could prevail in the DACA cases even if the program is not illegal. The Supreme Court might conclude that Trump still has the authority to repeal the program purely on policy grounds. But that option is, at the very least, made more difficult by the administration's failure to present a policy rationale, except at the eleventh hour. Even now, the administration still hasn't put forward a theory of why it's actually a good idea to subject DACA recipients to deportation, as opposed to claiming that rescinding DACA is desirable for such ancillary reasons as "sending a message" that laws will be enforced. That rationale that could justify pretty much any decision, since virtually any policy could be interpreted as "sending a message" to some group or other.

The Court could also rule that decisions to rescind a enforcement policy are inherently unreviewable, and that therefore the administration can essentially do whatever it wants in this area. But doing so could set a dangerous precedent for future abuses of executive power.

The justices could even conclude that the argument that DACA is illegal is "good enough for government work," even if it is badly wrong. It could perhaps still be enough to pass muster under the Administrative Procedure Act, the law under which the DACA cases are being litigated. I will leave this and other APA-related issues to commentators with greater relevant administrative law expertise.

It is, therefore, entirely possible that the Court will find a way to rule in favor of Trump without ruling that DACA is illegal. Nonetheless, the administration has put a lot of its eggs in the "DACA is illegal" basket, even if not quite all of them. Those eggs richly deserve to be crushed.

NOTE: This post addresses only a key legal issue at stake in the DACA cases. I considered the moral and policy questions raised by DACA here. It is telling that those issues are sufficiently one-sided that even an administration as deeply hostile to most immigration (including legal immigration) as this one wants to avoid looking like it actually wants to deport the "dreamers."

 

 

 

 

 

 

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  1. Trump should use the same rationale to declare non-enforcement of every other federal law that his base doesn’t like. And beneficial selective enforcement of the rest.

    1. You say this like it isn’t already what he’s doing.

      1. I’m kind of missing the law that he’s set up a formal program to systematically fail to enforce. Could you point it out?

        1. How would you characterize his (illegal) tariffs and the associated exemption program he’s running?

          That’s just one example of his systematically electing not to enforce the law that just happens to fit the arbitrary conditions you’ve articulated here. There are lots of other laws that he’s treating as dead letters or choosing to enforce only selectively – which is what Ben was suggesting Trump should try doing. Remember the Hatch Act? His selective enforcement of antitrust laws against perceived political opponents? Withholding military aid to Ukraine in order to pursue unrelated priorities? It just goes on and on with this guy.

          1. You’re just listing random things and calling them non-enforcement. That’s not very good storytelling.

            You need to add some innuendo about “I wonder what favors they got in exchange…?” And then project some dumb cost estimate out to the year 2100 so you can hyperventilate about how big the number is.

            That’s how Dems do it. Try harder.

            1. It’s really depressing to me how many people will giggle over his lawbreaking just because they think it’s pwning the libs.

              1. A bad policy done legally (blame Congress for the monstrosity) is better than a bad policy done illegally.

                Congress can always end the tariffs.

                1. How would you suggest they do so? By clarifying that “national emergencies” do not include the need to pressure other countries to agree to weak-sauce deals so that Trump has something to campaign on?

              2. “Lawbreaking” is an important part of the story. He wouldn’t be Voldemort without it.

                I guess we should all be obsessed NPC types making up new little stories in our heads all the time. About (gasp) lawbreaking or whatever else. And then deciding to believe them and getting even more obsessed, even more disconnected from the day to day reality.

                In the day to day reality, politicians aren’t what matters. It’s a nice day. Try not to be so absorbed in your unhealthy personal obsessions.

          2. You really think that, if you investigated it, you wouldn’t find he has a statutory basis for his actions? I mean, just because you don’t like it, doesn’t mean he’s doing it illegally.

            1. Obama had just as much statutory basis to implement DACA as Trump has to impose steel/auto tariffs, reallocate military spending, or suspend military aid to Ukraine.

              No statutory basis to ignore the Hatch Act, withhold his tax returns from Congress, or prevent the whistleblower complaint from going to Congress – but who’s counting, eh?

              1. The only statutory basis Obama had for DACA was Congress refusing to enact a statute. Less than zero basis, IOW.

                As far as imposing tariffs, reallocating military spending, and putting a hold on that military aid?

                You’re wrong.

                The tariffs were under Section 232 of the Trade Expansion Act of 1962.

                Reallocating military spending was under the National Emergencies Act.

                As for the Ukrainian aid holdup, haven’t researched that one yet, but I’m expecting that it’s equally based in statutory authority.

                1. The only statutory basis Obama had for DACA was Congress refusing to enact a statute. Less than zero basis, IOW.
                  Brett, you know better than this.

                  1. It was literally a discretionary decision to NOT enforce statutory law. That’s the opposite of having a statutory basis.

                    Sure, it was implemented by agencies created by statute.

                    1. Discretion is applied in specific cases. It’s what permits a cop to NOT write you a ticket when you’re speeding.

                      But a cop who just says, “I’m not enforcing any laws against rape, murder, robbery – because I don’t feel like it” is not doing his job.

                      The preamble to Obozo’s unconstitutional action on DACA was multiple instances of Obozo declaring, “I can’t legally do that!”
                      Probably the ONLY thing he was right about in his entire presidency.

                    2. “Discretion is applied in specific cases. It’s what permits a cop to NOT write you a ticket when you’re speeding.”

                      But that is done on a case-by-case basis at the street level by local authorities. The discretion you are talking about is equivalent to one where President Trump decides not to enforce taxes to be collected from the 1%. An entire class is excused based on a political goal, not a personal one.

                      If Presidents are free to ignore laws they find inconvenient, it essentially gives the current Exec defacto veto power over past legislation, which is what DACA accomplished. It also gives them undeniable leverage over Congress where the only immediate remedy is impeach/conviction.

                2. Quite simply, DACA is within the scope of presidential authority because it does not change the law, and does not legalize anything that would otherwise be illegal, without specific authorization from Congress.

                  Critics attack DACA on the grounds that Obama lacked legal authority to choose not to enforce the law in this case. This critique runs afoul of the reality that the federal government already chooses not to enforce its laws against the vast majority of those who violate them. Current federal criminal law is so expansive that the majority of Americans are probably federal criminals.

                  I had hoped for at least a fig leaf of legal reasoning here – but I find none.
                  Suffice to say that if Obozo could just get away with refusing to enforce laws, then Trump can do the same. Let’s start with welfare. Yes, it’s a law. Yes the money is allocated. No, it’s not going to be distributed any more because that’s a law that Trump decides not to enforce.
                  Or how about shooting criminal aliens at the border. Yes, the law says you’re supposed to treat them as criminals, not enemy combatants – but hey! Trump doesn’t have to obey the law, so set up the machine guns and turn all those criminals into hamburger.

                  Can you think of any other area where Trump could just decide not to enforce the law? I can. How about money being sent to liberal states? It’s allocated – but what if he just refuses to spend it?

      2. What story are you guys making up now? I haven’t heard this one yet.

        1. I’m not surprised, you guys have chosen to just tune most of the facts out.

      3. Oh? Is he directing the ATF to allow post-1986 machine guns to be registered? Is he directing NICS to pass people under 21 for handgun purchases?

    2. He should absolutely do that, if he loses this case. Call it “MAGA” instead of “DACA”, and waive enforcement of some law really stupid law that’s popular with the left, such as the one barring ownership of newly manufactured silencers.

      1. Not a rhetorical question. Which laws did you have in mind?

        DACA seemed like an obvious candidate for the left since it is wildly popular and doesn’t have a natural anti-constituency. (Even Republicans overwhelmingly support not punishing children who were brought into the country illegally by their parents.) Is there an example of a federal law that democratic and republican constituencies the country over oppose, but that Democratic political leadership (or a majority of them) supports and wants enforced? (With the understanding that there are some prominent Republican political leaders who do support DACA.)

        1. Not rhetorical answer: The prohibition on ownership of suppressors.

          They don’t lower the noise level of firearms to theatrical levels, they just get it below the point of acute hearing damage. Not enforcing that law could be easily justified as a public health measure.

          In some countries, using them is mandatory for that reason, not prohibited!

          Anti-gunners seem to want to retain the prohibition on the basis that, if they can’t keep people from owning guns, they can at least hope for them to go deaf.

          1. I don’t know many people (left or right) who would get worked up about the President refusing to enforce the non-ban on silencers. But I think it’s unlikely that he does so, since he’s stated skepticism publicly about silencers/suppressors.

    3. Obozo repeatedly said he didn’t have the Constitutional authority to create DACA. He was right about that.

      Then he did it anyway.

      When a president takes executive action, there’s no reason the next president can’t take executive action to REVERSE the prior administration’s actions. To do so is to handcuff the administration.

      Ironically, if one argues that DACA is constitutional and can’t be overturned, then one must also argue that Trump can take whatever action he wishes to take and future administrations are bound by that action in perpetuity.

      DACA is unconstitutional (maybe the only thing Obozo ever got right) and Trump should be able to kill it today and begin deporting Dreamers tomorrow.

  2. Deporting Dreamers is morally wrong.

    Some things are unclear: (1) If DACA is an exercise of prosecutorial discretion, what stops Trump from exercising that discretion differently? I.e. why does one administration’s choice on discretion bind the next one? (2) Could Trump’s EPA grant systematic exemptions from environmental laws or safety regulations?

    1. Trump can, if he abides by the APA.

      But as noted in the first paragraph of the OP, Trump’s reasoning is not an easy road to that end.

      As for 2) they already do, when permitted by law. A lot.

      1. 2) “When permitted by law”. Key words there.

        But there isn’t a blanket statement that says “Ehh….not gonna enforce it at all”.

        1. The OP lays out why DACA is permitted by law as well.

          1. Yes, but not in a way that’s persuasive. It basically boils down to, “The President doesn’t have to enforce every single law in every single case, and DACA is just an instance of failing to enforce the law in every single case.”

            And blows off that it’s an instance of setting up a formal program to systematically fail to enforce a law, complete with levying fees and spending the resulting money without statutory authorization.

            Like anybody thinks this is a general proposition Somin would agree to if he didn’t like the program in question. Like others have said: Suppose Trump up and decided it was good policy to systematically waive enforcement of some law Somin likes? How about waiving enforcement of federal laws against kidnapping, where the victim is present in the US illegally, and just charging a license fee for doing it? Set up a whole system of immigration enforcement bounty hunters?

            How is this different legally? Because kidnapping laws are good, and immigration laws aren’t? That’s not a legal argument.

            1. “And blows off that it’s an instance of setting up a formal program to systematically fail to enforce a law, complete with levying fees and spending the resulting money without statutory authorization.”

              Is it your position that DACA is unlawful entirely because of the fee and spending provisions? Or do you think those can be severed? If they were severed, would you agree that DACA is a lawful exercise of presidential discretion? If not, why bring them up at all?

              “How is this different legally?”

              You can say that about any prosecutorial discretion decision. Jaywalking and murder are both illegal. They are not different, legally. Are you arguing against prosecutorial discretion categorically? Do you the President Trump’s EO 13782 is unlawful?

              If President Trump merely granted pardon for every person convicted of [federal law of your choosing] are you saying that would be an unconstitutional use of the President’s pardon power?

              1. It’s my position that DACA is illegal because of the systematic nature of the refusal to enforce the law. It represents a failure of the President to fulfill his constitutional duty to “take care” that the law be faithfully executed.

                Systematic refusal to enforce is not faithful execution, it is its opposite.

                The extra-legal fees and expenditures are just the cherry on top, that can’t even be justified by Somin’s reasoning.

                1. “It’s my position that DACA is illegal because of the systematic nature of the refusal to enforce the law.”

                  As the author noted not enforcing laws is not that unusual. The author used the case of drug use in college dorms. Another example would be automobile speed laws. Most people understand that there is a grace provision and you can go 75 mph in a zone set at 70.
                  Finally I would not this is not a refusal to enforce the law but rather a prioritization. We deport the dreamers after we get every other undocumented person deported, or essentially never.

                  1. “Most people understand that there is a grace provision and you can go 75 mph in a zone set at 70.”

                    And some people understand that going 60 in a zone set at 70 can precipitate stops for ‘driving while black’ or ‘driving while Hispanic.’

                  2. So, let’s run with your speeding example. Speeding is illegal. It’s not broadly enforced, except in extreme examples, but it can be.

                    Now, envision a concept where instead of speeding being illegal, but not broadly enforced, instead the governor says “Speeding isn’t illegal, and we will not prosecute anyone who isn’t speeding more than 10 miles an hour over the limit. Ever.”. Furthermore, a program is put in place, where people can pay a small fee, and be invunernable from any speeding tickets. Then those who pay the fee get special lane access, and discounted, free gas from the government, to enable further speeding.

                    Would all that be OK? No. Because it would further enable speeding and actually encourage it. It would also be the executive branch essentially making new laws, rather than just not enforcing current ones.

                    1. Armchair Lawyer,

                      Bad extension of the analogy.

                      You might not like that Dreamers get some, but not all, of the benefits of lawful residency, but this doesn’t place them above everyone else. Actually, they are still at a disadvantage in terms of freedoms, rights, and benefits afforded to other residents (“drivers” in your analogy) in their community. Your supposed “special lanes” tangent is silly. Dreamers remain prohibited from many of the special lanes, but do get to drive on some of the roads freely available to lawful residents and citizens.

                      Remember, Dreamers haven’t done anything wrong, their “wrong” is a status violation occasioned by the actions of someone else (usually their parents). Treating people as criminal or quasi-criminal based on their status when that status is unrelated to any choice they made or any action they took is just gross. That’s why most people are strongly against deporting Dreamers. If they aren’t going to be deported, why wouldn’t we treat them like actual, dignity-deserving people?

              2. On the pardon issue, he explicitly could do that, and it would be a great basis for an impeachment, but would be fully legal.

                Because the Constitution actually gives him that power, just as it actually obligates him to see the law faithfully executed.

                1. Back to your hyper formalism, what’s the legal difference between having a formal policy refusing to enforce a law, and categorically pardoning anyone the administration comes into contact with?

                  1. The very difference that you wrote in asking the question: One is a pardon, the other is refusing to enforce the law.

                    Is the distinction unclear to you?

                    Let’s say somebody robs a bank in D.C. (Just to make it a federal crime…) Trump could pardon them. That wouldn’t make the money their’s. They’d still have to return it. It would just mean that they wouldn’t be looking at jail time over the robbery itself.

                    Pardons don’t make acts legal, they don’t give you any protection going forward if it’s a continuing offense, or you re-offend. They cover events in the past, not the future. So the President can’t preemptively pardon you for something you haven’t done yet.

                    Illegal presence in the US is a continuing offense. Even if you pardoned it, if the person didn’t immediately exit the country, they’d be just as guilty and legally liable the next day.

                    1. The distinction is as clear to me as red and blue cars.

                      “Pardons don’t make acts legal…”

                      DACA doesn’t change what is or isn’t legal.

          2. The OP says why it might be Ok, but stumbles on why Trump can’t just reverse it using the same unitary executive reasoning to create it, other than to suggest an unpopular political hit.

            I’m for removing weasel words from politicians. Reverse it if you want, and take the hit, and let the voters decide if they like the policy change.

            1. Trump can; he’s just not following the APA to do so.

              1. Something the 0blama administration didn’t do, also.

                1. The Obama administration did attempt to comply with the APA, though there is some dispute as to whether they fully complied. The Trump administration basically sidestepped APA altogether.

      2. You are assuming that DACA would pass the “abides by the APA” test. But all the legal arguments in favor of it have nothing to do with the APA. They rely on the theory of prosecutorial discretion.

        I’m with Brett on this one. DACA was a right moral thing to do but the way it was done is legally indefensible. If allowed to stand, it opens up precedents that put way too much power in the hands of the Executive Branch.

        1. Then challenge DACA on that front. That the administration hasn’t done so isn’t DACA’s fault.

          1. Actually, it was challenged on that front, IIRC. It passed that judicial test.

            1. IIRC: the challenge was killed on grounds of standing, not on the merits of DACA’s compliance with the APA.

              1. Fair enough. Point is that Rossami’s argument that DACA wouldn’t pass the ACA is on shaky ground.

                Also because the Obama admin took the time to put it through the appropriate procedural hoops, which the Trump Admin is only learning to do today.

                1. 1. The claim that “the Obama admin took the time to put it through the appropriate procedural hoops” is extraordinarily shaky.
                  2. That would not be a challenge that could properly brought by a subsequent Executive administration. I’m pretty sure that’s a challenge that would have to be brought by someone outside the administration itself.

                  1. Summary judgement, courtesy of Rossami and like the Center of Immigration Studies.

                    How long did the Obama admin take to get DACA buttoned up? The DREAM Act died in November 2011, and Obama didn’t announce the initiative until July 2012. And it had been working it’s way through CIS since at least January. (https://en.wikipedia.org/wiki/Deferred_Action_for_Childhood_Arrivals#Rescission)

                    Trump, on the other hand, said he was gonna repeal it and then Sessions announced it. That looks like the sum total of the work that went into a favorable procedural record.

      3. IIRC: Obama did not comply with the ACA in enacting DACA

        1. That seems in dispute.
          Certainly the Obama admin spent some trouble building a record because they know how things get done around here.

          Anyhow, doesn’t really matter except as a tu quoque for the case at bar.

    2. (1) It doesn’t. The President is free to cancel DACA. But at least against an arbitrary and capricious challenge, it is bound by the rationale it relies on. I think the rationale the administration relied on is sufficient to defeat an arbitrary and capricious challenge–at least at SCOTUS–but it is a much closer call since it hinges on the illegality of DACA, rather than just an exercise of prosecutorial discretion.

    3. Deporting Dreamers is morally wrong.

      I reject your premise. What is morally wrong is to deliberately not enforce our laws. I know, I know…you tried to think, but failed. Take a deep breath, and try again.

      1. A president should go to Congress to officialize the change, so to speak, but lack of enforcement consequences should be the decision of the voters in the next presidential election.

        “Yes!” screams the left.

        Except environmental laws. Then the courts can order enforcement.

        You are all terrible people.

      2. Your bigotry, Atlas_Shrugged, is the most important reason you are a disaffected, vanquished casualty of American progress, destined to spend the rest of your life complying with the preferences of better Americans.

        1. I think Reverend Arthur I. Kuckland is far better than you.

          1. Of course. Curb-stomped clingers need to stick together.

            Until they are replaced, that is.

      3. MLK would have some issues with blindly enforcing all laws being the moral highground.

        So would the Neurenberg trials.

  3. Dreamers should be the first ones deported, due to their heinous entitled activism. Let the hardworking illegal immigrants stay before the dreamers. Say, what is so bad about moving anyway? Most people move these days. My friends whose parents came from Mexico spend tons of time vacationing there anyway.

    1. Dreamers should be the first ones deported, due to their heinous entitled activism
      Yeah, what evil speech. Lets chill it!

      The only way to fight becoming an authoritarian state is to become authoritarian against this outgroup. Right out of the populist strongman handbook.

      1. Yeah, except that these entitled brats have outright said that they won’t let their criminal parents be used as bargaining chips. In other words, a magnanimous act of charity from the United States to let them stay will be met with immediate demands to grant it to their non-English speaking, obese parents, which of course means more Medicaid expenditures and so forth.

      2. Selecting immigrants based on their willingness and ability to contribute to this country and embrace its values is . . . straight out of the common sense handbook.

        1. Yes, and most Latin Americans don’t qualify.

        2. Choosing immigrants based on their values is actually not out of any playbook we’ve used since that creates an arbitrary horrorshow. The point of the American Dream is that you get those values once you come here because our values are that strong.

          Regardless, protesting is actually very much in the American tradition.

          1. It was absolutely part of our playbook for most of history. Our values reflect our people, they don’t transcend it. Our values don’t turn illiterate Somali Muslims into freedom-loving Americans.

            1. This thinkig is why you’re the most unamerican individual I’ve ever crossed path with.

              1. Ask the founders, in 1789, whether they believed that Somali Muslims were just like colonists from England.

    2. Wouldn’t we be better served by putting them in gulags or reeducation centers? If we deport them they can just spread their persuasive advocacy abroad.

      1. No, I wish them and their homelands all the best, and the highest good would be for them to bring their acute senses of justice to bear in places like Mexico that are collapsing into anarchic terror.

      2. Their persuasive advocacy that the country they reside in should have an effective open borders policy? I don’t think that would be particularly persuasive in Mexico, which has extensive immigration restrictions not just on those from its south, but on all potential immigrants.

        For instance, non-Mexican citizens cannot own property in the country, leading to large areas under 99 year leases that will revert to the Mexican government along with the developments on them.

        And this from someone (me) who welcomes anyone who wants to join the American experiment and is willing to endure hardship to get here. It’s a free empirical screening on personal persistence, and those are just the sort of people I want more of.

        1. I was thinking they would go to Mexico and post on the internet (for American audiences) their persuasive advocacy that the United States relax its centrally planned immigration policy. They might even argue that unfair Mexican domestic policies makes us more compelled to accept Mexicans than less. It will be harder for them to get their message out from gulags, and we could also put them to work. Better yet, we could reeducate them and release them into the public to spread the gooder word.

    3. What better way to promote the American way of life than to send those youth back to their countries, to act as evangelist for the gospel of American values, to bring those wretches countries out of their dark ages. Dreamers have no higher calling than this.

      1. Which is not a choice we must make for them. Forced evangelism isn’t.

        1. Failing to answer this call is renouncing their claim to the American Dream.

          1. Going back home an evangelizing is not the American Dream.

            And it’s not on you to dictate to them what it is, much less force them to follow your BS call.

            1. It’s called giving back. If they’re unwilling to live this American value, can they say they’re Americans?

  4. The Court could also rule that decisions to rescind a enforcement policy are inherently unreviewable, and that therefore the administration can essentially do whatever it wants in this area. But doing so could set a dangerous precedent for future abuses of executive power.

    And ruling that the executive decisions of one administration are presumptively binding on the next opens up a whole ‘nother can of worms. We know which way that ratchet works, it’s how you wind up with the idea that the Paris Climate Accord is somehow binding on the US despite the fact that the Senate never even got a look at the thing.

    1. “And ruling that the executive decisions of one administration are presumptively binding on the next opens up a whole ‘nother can of worms.”

      That’s not the ruling.

      1. That’s not the literal ruling but I’m not seeing the distinction you’re trying to make.

        For example, could President Trump with an executive order finding that prohibiting or restricting the use of hearing protection is a willful and evil-intentioned battery on any person so prohibited, and therefor directs the FBI to register a firearm silencer to every 4473 form they have, and to additionally register one without payment of fees, inclusion of serial numbers, or background checks of any kind to anyone who writes a letter to the FBI requesting one?

        I’ve picked that one because no one should have standing to sue over it themselves as no one is harmed by it (so read it in that light), and that to reverse that would require that the next President go through notice and comment rulemaking to undo it?

        It’s always seemed absurd to me that the APA prohibits summary reversal of acts that themselves violated the APA, but at least that would be consistent.

        But if so, wouldn’t (in this example case specifically) that open up the President to 1983 liability, as she’d be acting in a way clearly established by the Executive as objectively tortious? That ones just for fun, but also emphasizes that this can’t possibly be the rule.

        1. If you agree that no one has standing to challenge the hypothetical executive order, what’s the problem here?

  5. I know this post isn’t addressing the APA issue but I’m still unclear why an exercise of what is essentially prosecutorial discretion is subject to the APA anyway. If one administration can use it’s discretion not to enforce a law, then another should be allowed to use its discretion to enforce the same law. Since they aren’t interpreting what the law is only what will be enforced, I don’t know why they have to give any reason for the change.

    As it is, I think DACA should be done through Congress but is probably legal. Giving them work permits is in the bounds of what has been delegated even though pretty clearly against the spirit of what the delegation is for (just another in the many reasons why Congress should stop delegating its power). I’m not even sure what “lawful presence” means exactly so I can’t comment on that.

    1. “…I don’t know why they have to give any reason for the change.”

      They don’t. But if they do, arguably they are bound by those reasons, at least on an arbitrary and capricious challenge to the change in policy.

      I think the administration wins at SCOTUS. But they haven’t made the case any easier for themselves. See Motor Vehicle Mfrs. v. State Farm, 463 U.S. 29 (1983). I don’t agree with that case’s application here. I think (like the dissent) that BLE, 482 US 270, decides the issue. But the 9th Circuit majority disagreed. We’ll find out from SCOTUS.

  6. As co-blogger Josh Blackman (a longtime critic of the legality of DACA) points out, the Trump administration’s position in these cases relies heavily on the notion that DACA had to be rescinded because it is itself illegal. For political reasons, the president did not want to give the impression that he actually favors deporting the Dreamers (which would be an extremely unpopular position). Thus, he decided to hide behind the theory that his hands are tied by legal considerations

    Apologies for perhaps a dense question, but this suggests that the argument here is not over whether Trump may rescind a previous president’s orders, but rather whether he can have them declared illegal and therefore invalid? And that the only reason for doing that is to avoid obviously taking a very unpopular opinion?

    As I guess it has to be said these days, I’m an open borders guy, but this case confuses me.

    1. That’s the briefing the Trump admin made in court.

      ¯\_(ツ)_/¯

      1. The more interesting question, I think, is what happens if the Court decides that the Executive was in error in their determination that DACA is illegal.

        Just because they’re wrong as a factual matter doesn’t mean they didn’t have the power to undo it, so coming to that conclusion is only halfway there, and a good faith (stop laughing, it’s possible the Trump admin was acting in good faith here) conclusion on an uncertain question is almost definitionally not arbitrary and capricious – it’s just wrong.

    2. There’s a much better reason for DACA to be declared illegal.

      If it’s illegal, a future administration can’t just say “whoops, new policy, DACA is back”. They would need a law.

  7. This is the most poorly reasoned Ilya Somin piece since the one where he posited that Obama was, of all past presidents, the most helpful to the cause of religious liberty because of his numerous attacks on religious liberty. This whole article reads like an ad hoc rescue by a technocrat who is so in love with the mechanisms of the existing order that he won’t tolerate seeing it besmirched. As someone once said of Alexander Hamilton, Ilya Somin is a Tory without a king.

    I really don’t care for Trump, and I’m highly sympathetic to the Dreamers. but this is just an awful article.

    1. Care to go into your specific issues, or just gonna say it’s bad and move on?

      1. Counter example: President Trump enacts the Forever Yearning To Win program (FYTW!) under which anyone who has been a registered Republican for at least 3 years and files an application to pay $100 to the FYTW fund which will be spent on Designated FYTW sites (every one of which is a Trump resort) or the Presidential Guard Militia, and which guarantees that the applicant won’t be prosecuted for voting as many times as they want – which will be enforced by the Presidential Guard in each state.

        Lawful? That doesn’t (I think) actually violate any laws that DACA doesn’t – it’s just an enforcement prioritization that a politically favored class won’t be prosecuted.

        The difference is that DACA is generally popular, and this wouldn’t be (trolls excluded, of course).

        1. That’s an unauthorized program. DACA uses existing statutory authority.

          Plus our allowed error rate for illegal crossings has always been higher than fraud at the polls.

          1. “That’s an unauthorized program. DACA uses existing statutory authority.”

            It’s pure prosecutorial discretion.

            1. Voter fraud is a state crime as well as federal, no?

              1. It can be a state crime. That fact is completely irrelevant to the question posed by the hypothetical. On what federal principle would Robert’s hypothetical be prohibited but DACA allowed?

  8. Current federal criminal law is so expansive that the majority of Americans are probably federal criminals.

    This is a bold claim, which the linked Alex Kozinski essay utterly fails to substantiate.

    Judge(?) Kozinski gives as his main examples corporate officers who were convicted of various strict liability environmental crimes, and other “businessmen” who were convicted of a Lacey Act violation. There is certainly an argument that imposing criminal liability for this conduct is unfair. There is even an argument that most Americans would have engaged in similar conduct given the opportunity to do so. But most Americans haven’t had that opportunity, and thus haven’t committed that crime.

    Similarly, while the parameters of honest services fraud are vague (and have been narrowed by the Supreme Court since the essay was published), most Americans aren’t in a position to commit it.

    Likewise, while it’s very easy to violate 18 U.S.C. § 1001 by lying to a federal agent, it’s also something most Americans will never experience.

    The other two examples are: using illegal drugs and lying on your taxes. I’m dubious that most Americans have done that, but perhaps I’m a naïf. I certainly don’t think many people would be surprised to know that it’s illegal to possess illegal drugs or to falsify your tax return, so if that’s the point you’re trying to make, you probably ought to put it that way.

    1. “But most Americans haven’t had that opportunity, and thus haven’t committed that crime.”

      I’d guess that most Americans have improperly disposed of batteries or fluorescent light bulbs. Probably failed to pay taxes on interstate purchases, too, to name another very, very common crime.

      The question isn’t whether everybody is a criminal if the law is interpreted reasonably, with a presumption of leniency for minor offenses. It’s whether everybody is a criminal if faced with a prosecutor out to get them. And, yeah, pretty much everybody could be nailed on SOMETHING if you threw enough resources at investigating them, and didn’t care if you were being reasonable.

      Especially once you start ruining them financially with the legal costs, and offer them a plea deal in return for stopping short of totally bankrupting them.

      1. Which is why I’m such a fan of jury nullification.

        1. Me too, and also because juries that can nullify are, just as a matter of historical fact, the sort of juries the 6th and 7th amendments were guaranteeing us.

          Whether you think jury nullification a good idea or not, there’s no getting around that fact.

  9. “he shall take Care that the Laws be faithfully executed,”

    Not in force anymore?

    1. What’s your argument? The President has a duty to enforce federal laws. The duty is enforced by Congress and the American people. In this case, it isn’t. (Because neither Congress nor the American people oppose DACA.)

      1. The American people are getting the shaft, because they overwhelmingly support ending illegal immigration and reducing immigration levels, while also being OK with DACA as policy. The ruling cabal of big business interests and their monoparty says, sorry, the historically unprecedented importation of foreign populations will continue apace, and we’ll also circumvent the rule of law to instate DACA.

        1. I don’t think Americans “overwhelmingly support ending illegal immigration and reducing immigration levels”. I think both are pretty extraordinary claims. What’s the evidence?

          DACA will be the law after it is no longer an enforceable executive order. DACA was a gift to the GOP. They didn’t have to campaign against children who were brought here illegally. And so in places like Texas (where the GOP is much more pro immigrant) you didn’t have to go out on a limb. Their gamble is to protect from the right by filibustering it, and protect from the middle and left by saying nice things about children but demanding what they know are poison pills from the left. Compromise is impossible because it would not help the GOP. They should love the status quo (no law, but DACA is real).

          1. The long-running Harvard/Harris poll, for example, has asked many different questions about immigration over the years. Oftentimes, the results have shown black and Hispanic Americans to be even more in favor of reducing immigration compared to other demographic groups (which makes sense, because black and Hispanic Americans are more likely to have working class jobs that are harmed by current immigration).

            The latest says 70% of Americans would be very or somewhat likely to vote for a candidate who “stands for strengthening our border to reduce illegal immigrants”, while only 30% would be very or somewhat likely to vote for such a candidate. For a candidate that supports increasing *legal* immigration, the split is 64 unlikely / 36 likely. https://harvardharrispoll.com/wp-content/uploads/2019/09/HHP_August2019_Crosstabs_RegisteredVoters.pdf

            Another one, “Should the United States deny green cards to immigrants who might be deemed likely to be heavy welfare users?” 60% answer Yes. 80% say illegal immigration is a very or somewhat serious issue facing the country right now, 64% say the same for legal immigration. 78% say illegal immigrants should not be able to get govt health care, disability, or welfare. Etc. Some of the previous polls were even more illuminating on legal immigration levels because they provided the facts and data on those questions rather than just generalities; the polls show people aren’t generally aware of the facts and data.

            1. Note that these groups of people don’t approve of President Trump any more than the other non-outlier polls you may be familiar with. This is zeroing in on the policy issues, which is a separate matter from Trump approval.

            2. You’re new goal posts are pretty different from what NToJ quoted.

            3. “reduce illegal immigrants” is not the same thing as “ending illegal immigration”. It’s certainly not the same thing as “reducing immigration levels” generally, which is also polled, and has been, for decades.

    2. President Obama, I think, could easily enough have taken the basic prosecutorial viewpoint that the Congress had not provided enough resources (both money and manpower billets) to fully deal with well over 10 million illegally resident aliens. That would have allowed him to issue an order assigning very low priority to prosecution of both the dreamers and their parents (as well as the undocumented parents of American born citizen children. He certainly would have been well aware of the near zero probability that the Congress would respond by providing those resources.

      Instead, he instituted a program establishing an officially protected class of technical criminals and gained a good deal of support from a segment of the population and anger from another. DACA (and DAPA) were political moves, plainly recognized as such by both supporters and opponents. At the same time, he provided his successor, a strong opponent, a list of registered candidates for attention and an example, as if President Trump needed one, for at- or out-of-bounds, authoritarian, executive action.

      And the Senators and Representatives pretty much ignored it beyond posturing and recriminations with content dependent on their particular electoral and other concerns.

      The fundamentally unfair aspect of all of this is that the DACAs, DAPAs, and quite a number of others jumped the line. At an amusement park it would get them thrown out. Why should it get them a pass as immigrants? That irritates me and I suspect more than a few others.

      It certainly is true, especially of the adults who consciously committed crimes, that these are the energetic, probably intelligent people with initiative and risk taking propensity who, over several generations, are likely to make disproportionate contributions to their adopted country. It also is true that they have paid a price in insecurity, but that was their choice, and is in the past. But it is for the Congress, feckless though it often is, to find and enact an equitable solution. The courts are too blunt a tool, and presidential directives insufficiently rooted in the laws fail to provide the necessary long term fix.

  10. OK, two more points.

    “The grant of “lawful presence” to the immigrants covered by DACA is perhaps the most questionable part of the policy. But while this may seem like a big deal, in reality “lawful presence” does not actually legalize the presence of any otherwise illegal migrants. ”

    So, per Humpty Dumpty, I guess we know who’s in charge here, and it’s not the words.

    I agree that non-delegation isn’t actually relevant here, in as much as Congress was asked by the prior administration to delegate it this authority, and Congress refused. So there’s no delegation here to run afoul of that doctrine. Rather, the problem is that the executive is exercising authority here Congress explicitly refused to give him.

    Finally, why should the President be bound by YOUR view of his lawful authority? Why can he not argue, “I have a less expansive view of my Constitutional authority than, say, Ilya Somin, and since no law obligates me to pursue this policy *I* think unconstitutional, (No matter what he thinks!) it is perfectly within my discretion to refuse to exercise powers I think I do not lawfully have. Indeed, am I not positively obligated by my oath of office to refrain from discretionary acts I think unconstitutional, even if somebody else thinks Presidents more powerful than I, the actual President, do?”

    This would not be an idiosyncratic view of Presidential authority: Obama, too, declared DACA unconstitutional before he went ahead and did it anyway on the novel theory that Congress refusing to enact a law entitled him to act in Congress’ place.

    1. Really, why Ilya approves of the policy, his approval of the policy is missing the Constitutional implications of such an amazingly broad executive overreach.

      I’ve addressed some below. But what other laws can the executive simply…decline…to prosecute, ever? For policy reasons, of course. Campaign finance violations? Any law that Trump may or may not violate? Can Trump just say “Nope, no prosecuting any violations there, not enough resources.”

      1. Campaign donors to no longer be prosecuted for going over the donation limits, as long as they are otherwise “reputable”.

        Taxpayers to no longer be prosecuted for underpayment, as long as their “other behavior” meets with some beneficial approval standard.

        Firearms law violations no longer prosecuted if committed while wearing a MAGA hat.

        It’s easy to imagine them. But we all know that this sort of thing is only allowed by Democrat-appointed judges, and only when done by someone like Obama or Warren.

  11. Quite simply, DACA is within the scope of presidential authority because it does not change the law, and does not legalize anything that would otherwise be illegal, without specific authorization from Congress.

    I’m sorry Professor Somin, but this simply cannot be the case. Congress never, ever intended to grant a legal status to illegal aliens en masse. POTUS Obama DID change the enforcement of the law(s) passed by Congress. That was a step too far.

    1. I guess the general principle here is that, if it’s not a rights violation for a cop to playfully hit you with a squirt gun, it couldn’t possibly be a violation for him to knock you off your feet with a water cannon.

      Scale matters, and DACA wasn’t just a matter of discretion, it was setting up a whole new program which effectively changed the law.

      Explicitly so: Obama declared that DACA was beyond his authority, and then when Congress refused to enact it for him, set out to implement the program Congress refused to enact.

      1. Brett….That is the part I just don’t get. How on earth does Professor Somin make the argument that he does, since DACA flies in the face of what Congress intended (and passed into law)?

        1. Flatly stated, his belief that DACA is a good idea is driving his reasoning. Bad programs must cross every “t” and dot every “i”, and then fail anyway on a presumption they’re motivated by “animus”. What else could motivate them, since they’re bad?

          Good programs get cut however much slack is needed to permit them. And there will always be enough slack to let you do the right thing.

          1. That’s the best summary of liberal though process I’ve ever seen. Since their ends are morally right and just, the means are always justified.

            1. It’s a natural consequence of the left rejecting teleological ethics in favor of universal utilitarian ethics, primarily Rawlsian.

              From that perspective, not only does the end justify the means, nothing else can.

              1. “ ….. only does the end justify the means, nothing else can.”

                How is that anything Other than obviously true? What could ever justify the means, other than the ends?

                That obviously doesn’t mean that any horrible means are justified for moderately good ends (Which may be what your getting at), but that only a good end can justify any means, and a bad end can justify no means. After all, the path to hell is paved with good intentions, so even good means if used to gain bad ends are not justified, and a failure to act (no means at all) is the only moral choice remaining.

                1. “How is that anything Other than obviously true? What could ever justify the means, other than the ends?”

                  Spoken like a true Utilitarian, but not everybody is a Utilitarian. And for good reasons. Utilitarianism is an interesting metaphor, but is as a practical matter impossible to actually implement, (The calculation problem.) and so even if it were valid it would be useless under all but the most clear cut circumstances.

                  Utilitarian ethics has some characteristic flaws. The one most relevant to our current political dilemma, is that it creates an incentive towards adopting a crudely Manichean view of the world.

                  If your means are to be justified, and you are in a conflict with someone, you have every reason to exaggerate how bad they are. Because the worse they are, the worse your actions can be, and still be justified. If they’re just mistaken people of good will, you have to watch what you do. If they’re evil monsters, almost anything goes.

                  And so the left has a tendency to view everybody who opposes them as monsters. It’s freeing; If you want to punch someone, just imagine they’re a Nazi!

                  Teleological ethics has its own weaknesses, but not that one.

                2. “but that only a good end can justify any means, and a bad end can justify no means.”

                  No, even a good end can not justify any means necessary, if the means are in themselves evil, no end can justify them.

                3. Stop (consistently) using means that need justification and you won’t have to worry about the answer.

    2. The problem with Somin’s argument is that it is inherently self-defeating.

      IF DACA doesn’t change the law, then rescinding DACA doesn’t change the law. IF DACA didn’t change the law, nobody gained legal rights that they could then lose because of a change in DACA status, thus no one would have standing to sue.

  12. Let’s rephrase the program in terms that Ilya may better understand. DACA does the following.

    1. Declares a broad class of illegal activity against certain class of people “will not be enforced” (as opposed to a case by case basis) as long as…
    2. Those engaging in the illegal activity pay a non-insubstantial fee to the government (outside the normal legislative mechanisms to raise revenue). Those who fail to pay the fee pay be deported.
    3. Then spends the raised revenue outside the normal legislative distributive process.

    This is, in essence a protection racket from the executive branch that avoids Congress. Let’s assume, as Ilya says, this entire process is “constitutional”. What else can be done?

    1. Can Trump redirect the “fee” from the Dreamers towards wall construction? Why or why not?
    2. Can Trump institute a new program that says employers won’t be investigated for using illegal labor, so long as they pay a “fee” to Trump’s administration, which he can direct as he wants? Why or why not?
    3. Can Trump declare other crimes “not to be enforced”…for example Pot sales…or campaign finance violations…so long as a “fee” is paid to Trump’s administration that he can disperse. Why or why not?

    Hopefully this begins to show why DACA is an amazingly overbroad use of the executive power, and goes far beyond normal case by case prosecutorial discretion, and instead rewrites the law, ursuping Congress’s role.

    1. No. Because some Democrat-appointed judges don’t like those things and they won’t allow them. They’ll come up with a legal-sounding justification later.

    2. 2. Those engaging in the illegal activity pay a non-insubstantial fee to the government (outside the normal legislative mechanisms to raise revenue). Those who fail to pay the fee pay be deported.
      3. Then spends the raised revenue outside the normal legislative distributive process.

      Sounds like bribery. Or, to use the Constitutional term, Bribery.

      1. In other words, a quid pro quo?

  13. Let’s add one more point.

    Let’s say DACA is declared “legal.” But the Trump administration takes a few select DACA recipients, and decides to begin deportation proceedings.

    What’s the defense? “We have DACA, we can’t be deported!.” Meanwhile the government says “we’re enforcing the law, as it’s written. The person is unlawfully present”. Does an executive policy have priority over the written law? Does a statement like that have implications towards other laws?

    1. They’d start citing “reliance interests”. Which shouldn’t work, from the USCIS website:

      “Use this form to request that we consider granting or renewing deferred action on a case-by-case basis using guidelines described in the Secretary of Homeland Security’s memorandum issued June 15, 2012 (PDF). Deferred action is a discretionary determination to defer removal action of an individual as an act of prosecutorial discretion. Individuals who receive deferred action will not be placed into removal proceedings or removed from the United States for a specified period of time, unless the Department of Homeland Security (DHS) chooses to terminate the deferral. Individuals filing Form I-821D must also file Form I-765, Application for Employment Authorization, and Form I-765WS, Form I-765 Worksheet.”

      So even in getting the deferral, they’re notified that they’re still not here legally, and can be deported if the DHS changes their mind.

      1. Deferred, is well… deferred. Deferred does not mean that we have made a promise to never do a thing, merely that we reserve the right to get around to it later.
        Deferred is much different language than the amnesty that was provided by the legislature and executive jointly, and with force of law (because, ya know, it was law) in 1986.

  14. The problem with this whole argument is that it proves too much. If DACA is nothing more than executive discretion not to enforce certain laws, then it is neither binding on the next Admininstration (or even that one), nor does it vest any rights in anyone.
    This example:
    the feds almost never go after the hundreds of thousands of college students who are guilty of using illegal drugs in their dorms.
    proves the point. That the feds generally do not enforce a particular law does NOT mean that they cannot choose to do so going forward, nor that the persons against whom it is enforced have any defense based on past non-enforcement.
    If DACA is merely discretionary non-enforcement, then it can be reversed through discretionary enforcement.
    If, OTOH, it vests some rights in the DACA beneficiaries, then it is illegal, as Congress has to do that.
    That is really the nub here.

    1. This seems to be a valid point to me as well. If one president can just waive his arms and choose how to enforce the law, then why can’t another president wave his and change it all back? Arguments seem to be that some agree with the first president, making his changes valid, and disagree with the second president, making his invalid.
      I prefer laws that are based on actual actions, not on what some presume to be invalid motives. If people want to stop enforcing laws for young people, then change those laws. In Congress.

      1. Both of you read the OP. It addresses that particular concern in the first couple of paragraphs, I thought.

        1. You must be seeing a different first couple of paragraphs than we are.

    2. You are correct that DACA is not binding on this administration. The APA is.

  15. This just in: Trump says he just ordered federal prosecutors to not charge any abortion clinic protesters with crimes, including violent ones…also says he will use federal law enforcement authorities to prevent state authorities from enforcing state laws, and considering blanket pardons.

  16. Just a thought, but why can’t the administration just rescind DACA but not say they doing it, and just starting deporting all the Dreamers regardless. The result would be hundreds of individual lawsuits, but the administration could just let the ones who win, stay, and keep deporting everyone else. I cannot imagine a national injunction against ALL deportations.

    1. All I can say is that, after the last three years, that’s an awfully weak imagination you’ve got there.

      1. What can I say, I’m a glass half-full kinda guy.

        1. The glass is always full. just because some percentage of the glass’s volume (between 50 and 100%) is full of air rather than (liquid of your choice) that doesn’t make any part of the glass empty.

          Good luck trying to get a drinking glass to hold a vacuum.

          1. That pedantic answer reminds me of my father, who was as literal a man as ever there was (God rest his soul).

            I once asked the man the riddle, “what can you put in a barrel to make it lighter?” The correct answer is “a hole”. But he said “hydrogen or helium gas”, which he pointed out is lighter than common air, so is thus “lighter” than anything that you would put in it. He was, of course, technically correct.

            1. That makes the barrel and its contents lighter, but not the barrel itself.

    2. “…but why can’t the administration just rescind DACA…”

      Because it is headed by a coward.

  17. OK, so let’s sum up: Prof. Somin’s argument is that, if the President can order individual instances of selective enforcement as a matter of prosecutorial discretion, he can order systematic non-enforcement of a law he doesn’t like, complete with levying fees to pay for administering the program.

    Professor, we’d like an explanation of how you’d apply this reasoning to a similar program you didn’t approve of, such as my illegal immigrant bounty hunter program.

    1. This isn’t systematic non-enforcement. Illegals are getting deported at the same rate.

      1. If I were in a position to impose a rule that only people with names starting with the letters l-Z were subject to enforcement of speed limits, that would be systematic non-enforcement, even though people would still be getting tickets. You’re confusing “systematic” with “complete”.

        1. I think you’re confusing systemic with selective.

          But regardless of the semantics, I am satisfied that we’re talking about the same thing.

          Get your bounty hunter program authorized, and see how it plays as you want it to operate.

          1. I don’t want it, unless it’s statutorily authorized, because I actually do believe in the rule of law.

            I believe in it because government isn’t inherently good, it’s inherently bad; Government is, essentially, just a highly evolved protection racket, and it is always threatening to revert to type.

            The rule of law is one of the chains that keep this monster in check.

            1. Government is us.
              I could as easily say markets are inherently bad; the concentration of greed legally obligated to ignore morality in favor of growth for growth’s sake.

              I don’t believe that, because I’m partisan, but not nearly as extreme as you. Markets, like government, are us. Each with different incentives.
              Neither is an agent of morality, but each can correct the immoral excesses of the other.

              Blind obeying of the rule of law is actually pretty monstrous; I know you don’t believe anything so myopic because I’ve seen you advocate for nullification and even civil war.

              1. Like hell government is us. At most government is some of us. Sometimes very few of us.

                Jury nullification IS the law; The jury trial guaranteed by the highest law of the land is the jury trial as it was known when the Bill of Rights was adopted, and that was a jury that could nullify.

        2. The difference, Brett, is that there is no sensible reason not to enforce speeding laws against people with names starting with l-z. It’s purely arbitrary.

          1. Systematic is the opposite of random, Bernard, not of arbitrary.

          2. And choosing the children of law-breakers, who are law-breakers by their presence, with the other qualifications included, isn’t “purely arbitrary”?

  18. You know, this is a ridiculous debate.

    There appear to be at least some legal arguments on both sides of the issue. Let’s just say it’s a close call.

    Are the pro-Trumpers really willing to upend the lives of 800,000 people over a narrow, nitpicky, legal debate? Apparently so.

    Look at those who, like Blackman and Shapiro, think DACA is a good idea, but are investing time and energy in having it struck down. Why? Do they see themselves as pure warriors for The Rule of Law? Is it blind careerism, heedless of consequences?

    It’s a close call, so why create a tragedy for 800,000 people? Because you can, and George Will might mention you in his column?

    1. “Why? Do they see themselves as pure warriors for The Rule of Law?”

      Yeah, actually they do. And are. If you’re not willing to go all rule of law in cases where you don’t like the law, you don’t actually give a shit about the rule of law, it’s just a convenient excuse to get your way when the law says something you like, and a nitpicky legal issue when you don’t like the law.

      1. I’m willing, Brett.

        The difference is that you can never accept the possibility that your view of the law might not be 100% correct, and subject to no question whatsoever, to the extent that you define any disagreement as being in bad faith.

        I’m saying there is room for doubt here, and it should be resolved in favor of the dreamers.

        There are lots of other, nobler, battles for these warriors to fight for the law. They seem to like the ones that get them into the spotlight.

        1. bernard….I disagree. There is no room for doubt what the law passed by Congress actually is. We have the law. The text of the law passed is the text. Nowhere in current immigration law does it state we create a special legal status for illegal aliens so they can stay here. Period.

          Cite the relevant section of immigration law passed by Congress that enables this DACA bullshit.

          1. There is none, obviously. While the executive may have discretion to simply refrain from deporting folks, they have absolutely no authority to create a program, grant them legal status, work permits, etc. The mere fact that there is a federal case over the executive reversing DACA proves that it was illegal to begin with.

            1. And to clarify: if DACA were just an exercise of prosecutorial discretion then no one would have standing beyond their own personal case, and only to the extent to make a claim of detrimental reliance, which should fail as the DACA program itself states that DHS can change its mind at any time.

              But the courts think there’s standing, necessitating a belief in an established right. Since absent a non-prosecution agreement no one ever has a right not to be prosecuted for violating the law the courts view DACA as granting a right – not just as the absence of prosecutorial discretion.

            2. I’m not clear on this, but Somin sites a statue that is an existent program that allows work permits.

    2. Yes, we are, because these 800,000 people don’t belong here anyway, will never be good Americans, and will produce children that will demographically and politically displace us.

      1. An honest, if idiotic and bigoted, answer.

        1. Truth must hurt, huh?

        2. Maybe. I still think RestoreWesternHegemony is a parody account, but that may just be Poe’s Law at work. He hits too many points that match what leftists think conservatives believe, but there are crazies in every group so impossible to be sure.

          1. Deluding oneself is not a winning strategy. The sooner conservatives realize the truth about race, the better.

            1. Race realism doesn’t have to entail racism. Conservatives can notice the policy equivalent that the NBA is mostly black and Olympic swimmers are all white without it leading to the racist policies you advocate. Race neutral policies are what conservatives should advocate for, and let the best come out on top…which is usually the Asians or Jews anyway.

              1. Yeah, except that race neutral policies, given the fact that whites are only about 7% of the world’s population, would mean that non-whites would become the majority in every white country. That would lead to the end of conservatism.

                1. There is no one world government, what are you talking about? There should be race neutral policies in America. If you concerned about 3rd world peoples flooding the 1st world, that has nothing to do with it.

                  1. Right, but the only way to prevent that would be to end immigration entirely, or to adopt non-race neutral immigration policies.

                    1. Race neutral immigration policies that didn’t allow people from shithole countries because they were coming from shithole countries would have the same effect as explicitly racist policies that prohibited people from shithole countries because of their race. They would also have the benefit of being morally acceptable to a majority of the public.

                    2. But since non-shithole countries don’t have any sizeable number of people who want to come here, that would mean basically no immigration. Which would lead to the argument that we have plenty of space for third worlders.

    3. “upend the lives of 800,000 people ”

      Not us, their parents who brought them here without a right to be here.

      1. Um, they’re still people.

        1. Yes, people. Just not American people.

          1. Notably, bernard11’s argument of erring on the side of less misery was not limited to American misery.

            1. Notably, not our problem.

              1. Yes, it is. We’re causing the misery to line our own bottom line.

                1. Wait, how does it “line our bottom line,” which I assume to mean “profitable” to shrink the extent of the market? Modern (post-industrial revolution) economics is clear – more really is more.

                  If anything losing 800k people will decrease our prosperity, and as a rule dreamers are all in peak working years (or about to enter them), so they’re not even starting to consume subsidies yet.

                  Kicking out older people without significant savings at least might be a net monetary savings, but that’s not the Dreamers.

                  1. Low wage people do not increase our prosperity, as they and their kids cost far more than their economic output.

                  2. I’m talking about illegal immigration generally. Illegals are paid under the table, almost definitionally. Industry thus gets to avoid taxes and labor regs. And has a cohort that can’t complain about it.
                    They’re paid barely a living wage. It’s near slavery, 1920’s labor style and I wish we’d stop. But blaming the victims won’t get us there.

                    With Dreamers it’s not even about the bottom line. It seems to me it’s darker than that. They are not targeted because of anything other than symbolism. As Bernard noted, the law isn’t clear. But the cruelty is the point. Under the guise of standing up for rule of law, the unifying force of targeting an outgroup is marshaled.

                    1. They are not targeted because of anything other than symbolism.
                      Bullshit. They are targeted because they are illegal aliens and here illegally. No more, and no less than that.

                      If you want to make a compassion case; make it. But don’t make a legal case, cuz there isn’t one. Congress never intended for illegal aliens of any kind to stay here.

                    2. Lots of illegals aren’t targeted. But these are. There is no resource-based argument. And no one claims these will end illegal immigration.

                      Obeying the law just to obey the law without any interrogation of that law, especially a law with discretion, is not a modern mode of morality.

                2. “We’re causing the misery to line our own bottom line.”

                  Don’t you believe limiting immigration is a negative to our national bottom line?

                  Any misery was caused by the reckless parents.

                  1. This whole debate shows that we can make a choice to stop that misery.

                    I, and every economist but like one think that limiting immigration would hurt our productivity.

                    Doesn’t mean we shouldn’t, but that you find it unbelievable that our economy uses immigrant labor is pretty amazing. Especially after I’ve seen NToJ show you links.

                    1. It would be better to aim such arguments, valid though they are, at the Congress and the public. Those are the groups from which change should come.

                      We see in this DACA argumet a marginally lawless chief executive who, for policy and political reasons, is trying to undo the earlier work of a somewhat less lawless chief executive.

        2. Along with 6 billion others who would be better off here. Why are only Western countries obligated to flood themselves with low-IQ and illiterate third worlders?

      2. When an American citizen gravely endangers their children, they are locked up and CPS takes the kids away. Trespassing into a heavily militarily guarded border would obviously qualify. Even objecting to the chemical castration of your 7 year old son can cause the state to step in. So, what we have is a government that privileges foreigners over its own citizens, because they are seeking desperately to import as many foreigners as possible for profit and power.

        1. what we have is a government that privileges foreigners over its own citizens, because they are seeking desperately to import as many foreigners as possible for profit and power.

          You’re really going down this white genocide rabbit hole.

          You do know what these families are oftentimes running from?
          And we’re the ones who created the hazard so prosecuting people for child endangerment on that ground would be a little awkward.

          Anyhow, I don’t think we prosecute American under CHS for crossing dangerous borders.

          In short, your parallel is strained, and your thesis is one generally pushed by white supremacists. I’d pull up from this dive were I you.

          1. “white genocide”

            Poor and working class blacks suffer the most from open borders.

            Where does ML mention race btw?

            1. Sarc is “see no evil, hear no evil, speak no evil” when it comes to demography. Even the NYT is gleefully reporting these days that Virginia went Democrat blue due to immigration.

              1. Demography isn’t destiny. Certainly within a generation politics change.
                Unless, of course, one party is feverishly anti-immigrant and getting whiter by the day. Then they may have some issues with outreach.

                That’s not the fault of immigration, that’s the GOP making bad choices.

                1. Nothing is “destiny”…but it’s a fairly good indicator of where things are going…witness California, or Texas. Ask yourself why China is flooding Tibet with Han Chinese?

                  You are correct in that the GOP made a bad choice. The pro-cheap labor wing of the GOP aligned itself with the pro-open borders because we want the votes Democrats.

                  If Hispanic Catholics voted Republican, you’d be having a different take on it. Nor would I be foolishly saying to you “well, I suppose the Democrats need to be more pro-life”.

                  1. Which is why the Democrats hated the Cubans.

                2. Why did Trump do better with American Hispanics/Latinos, and American blacks, than Romney did?

                  Can you answer that Sarcastro?

                  It’s because the America First agenda benefits them too, just as much as white Americans, and it’s not race-based.

                  1. Yeah, Hillary has some history with blacks and it wasn’t great.

                    I’m not going to tell them how to vote, but I will tell you that your whole ‘they’re using foreigners to replace real Americans like you and I’ is right out of Stormfront.

                    1. Yes, the old tactic, “someone bad thought something similar so you’re wrong and evil.” I thought you decried this sort of thing all the time in the communism threads?

                      “You know who else liked orange juice? HITLER!”

                      Real Americans can be of any race. The question to you is what do you think a real American is? Just has the right paperwork?

                    2. This isn’t ‘Hilter was a vegetarian,’ it’s ‘your main thesis is a cut-and-paste of some of the worst our country has had to offer’s thesis.’

                3. Demography is destiny when certain people are genetically predisposed to a certain political leaning.

                  1. See, that’s BS. If the democrat party was telling American Blacks that this country was a meritocracy, which it mostly is, and that systematic racism was a thing of the past, which it is, then they would believe it. Moreover, there is cultural reason Asian immigrants support democrats (strong central government is normal to them) and that Hispanics vote democrat (strong central government is normal to them) etc. etc.

                    1. Even if it’s not “normal” to them, if you have a genetically low IQ (Hispanic mestizos, not East Asians), then government cheese will sound good to you, as you know you’ll never be able to make it in a limited government meritocracy.

                    2. This was a good read two years ago, and remains so.

                      http://www.anncoulter.com/columns/2017-11-15.html

                    3. Nothing is what you say, nor in Coulter’s column is evidence that genetics, or IQ, influence voting behavior of immigrants in the U.S., just some conjecture on your part. Blacks used to vote Republican ya know.

                    4. Okay, so what’s your solution? Continue to import tens of millions of third worlders and just hope that they see the light, from our shining beacon of liberty?

                    5. The U.S. is hardly a shining beacon of liberty…and only looks good by historical comparisons.

                      You could just wind down immigration, from all sources. You’re never going to get explicitly racist policies enacted into law unless those policies are racist to the benefits of blacks instead of whites.

              2. “the NYT is gleefully reporting these days that Virginia went Democrat blue due to immigration.”

                Yep. They didn’t have to come up with better ideas and convince Americans. All they had to do was sit back and get some different people in there from other countries. Is politics really war by other means?

                1. They didn’t have to come up with better ideas

                  They were glad to let the GOP promote worse ones.

            2. I italicized the ‘great replacement’ reasoning. It’s called the Great Replacement in France, and white genocide elsewhere.

              1. Where does the italicized part mention race?

                1. I leave the connection between immigration and race as an exercise to the reader.

            3. That is correct Bob. They want to take away our rights, our guns and self-defense, our livelihood, way of life, and self-government, to obtain power and a global socialist order. And the means, of mongering racism and calling everyone that disagrees white supremacist, are almost as risible as the ends.

              1. They want to take away our rights, our guns and self-defense, our livelihood, way of life, and self-government, to obtain power and a global socialist order

                This is not normal thinking.

                1. Yes their thinking is quite deranged, I agree. And it’s out of the norm compared to the American people in general. But unfortunately it’s quite commonplace, and openly stated, among leftist politicians, government officials, “intellectuals,” political donors, etc.

                  1. You’re paranoid. You sound right out of the rantings of a Klansman back in the day, or any number of populist rabblerousers arguing for violence.

                    1. Sarcastro, I am just repeating what these folks themselves have said thousands of times (here’s just one example). Are you saying I should not believe what they say? Why? Let me be clarify, I am absolutely not talking about “leftists” here, and in fact I’m including many on the “right.” That’s very important to clarify. Left/right is somewhat of a false dichotomy in this regard; it’s more of a dichotomy between the American people and establishment special interests.

                      Before signing off let me just say that I don’t harbor any ill will toward you for disagreeing with me, and I won’t attribute any nefarious motives or bad faith to you. Although I find it insulting when you constantly call me a white supremacist or compare me to a Klansman, I will assume you have genuine, good faith concerns. I’ll happily stick to my guns and defend “America First” because the truth is on my side, regardless of which politicians win or lose and even if America goes belly up.

                    2. Making it nonpartisans so it’s elites versus the rest of us doesn’t make your anti-foreigner populist raging any more palatable or less crazy.

                      I find your positions on this blog to be increasingly awful and kinda scary re: their trajectory, but I have no idea what you’re like as a person.
                      My comparisons of your quotes to that of a Klansman are an attempt to show you the rout you are going down. You’re the one with the radical quotes that can’t be seen as implying the necessity of anything less radical than violence.

                      We’re not a revengent organization, but if our President, our Congress, our Supreme Court, continues to suppress [real Americans], it’s possible that there might have to be some revengeance taken.

                      Got rid of the white part for ‘real American’ isn’t this a lot like your thinking?

                    3. I’m sorry you find facts and truth to be scary, but no, I’m not going down any route to anywhere, any more than you are becoming Stalin because you support social security or something.

                      As for your quote — no, that is nothing like my thinking. I don’t support any kind of political violence, nor especially any kind of violent overthrow of government authorities to which one is subject, even if they are terrible. I would support classic self-defense, classic national defense, just war etc.

                      It’s fascinating that you think what I’m saying implies that violence is necessary. I mean, I’m just telling you stuff I read in the New York Times and National Review. Do you become homicidal upon reading a publication? Get a grip man.

                    4. They want to take away our rights, our guns and self-defense, our livelihood, way of life, and self-government, to obtain power and a global socialist order

                      This isn’t facts, it’s speculation. To go the rout of telepathic demonization is your choice, even if you’ve told yourself it’s the only rational inference.

                      I also don’t see how you can think that the global liberal order is as powerful and evil as you seem to and yet abhor violence, though I’m glad that you do and hope you keep to that principle.

                2. Major Dem candidate Beto vows to take assault weapons (a 2nd Amendment right), and he and others want to go after the tax free status of churches that don’t accept gay marriage (conservatives’ way of life) to cheers and applause at primary debate…but that’s not normal thinking to notice?

                  Author of the “green new deal” that Dem candidates agree with admits it’s about socialism (replacing our capitalistic way of life) as much as environmentalism…but that’s not normal thinking to notice?

                  Democrats and liberals such as your self look at utilitarian fixes for world suffering that put other nations on the planet (another word for “globe”) ahead of American citizens….but that’s not normal thinking to notice?

                  Does it sound Alex Jones…yea, maybe a little, but he’s not wrong either.

                  1. You’re going to cite Beto as having his thumb on Democratic thinking? Your confirmation bias is showing.

                    I’ve been around with your paranoia about fundamentally changing America. It’s all confirmation bias. You love the fear; it justify some pretty bloody thinking on your part, as I recall.

                    1. Beto said what he said to a cheering crowd, and he nearly won a senate race in Texas (in TEXAS!). He’s fairly mainstream as far a Democrats go, and thus a good indicator of the thinking of Democrats on the whole. In a less crowded primary without a heavy hitter like Biden in the race, he could have locked in a nomination for his party.

                      Oh, and never mind that Obama said he wanted to “fundamentally transform” America. I suppose he was lying.

                    2. Why do liberals insist that we not notice the very things they do, and accept their obvious bad faith?

                    3. You off the top of your hat judge that the guy you quote as proof Dems are radical is a good example of Dem thinking. That’s confirmation bias personified.

                    4. Sarcastro, I don’t think you would know confirmation bias, or any logical fallacy, if it bit you on the nose.

                    5. You’ve found someone that confirms your thesis about how Dems think.
                      You have also, separately, decided that this person is emblematic of how Dems think, and would totally be chosen by the Dems but for some butfors.

                      You don’t see how a bit of a fallacy might have snuck into your reasoning there?

                    6. If I didn’t feel that correcting you in front of others wasn’t worth it, responding to you would be a waste of time.

                      I didn’t “find” someone, it was gleefully reported in the mainstream press about Beto, who almost won a major Senate race in Texas and was a major presidential candidate who said to a cheering crowd of democrats (you ignore that last part) that he is coming for our guns.

                      Are you that silly that you are unaware of polling data on this too? There is a huge partisan divide on it according to PEW

                      I also note, you ignore that parts about the green new deal being admittedly about socialism by its author, etc.

                    7. almost won a major Senate race in Texas Almost is key here.
                      was a major presidential candidate Is just untrue. What was his highest polling numbers?

                      You’re committed to your bias, and that requires you make Beto a huge deal. He wasn’t. He isn’t. He nearly beat Ted Cruz, who is not exactly Mr. Popular.

                      And a Texas Dem is going to do things differently. Not worse, but not standard Dem.

                      You’re working very, very, hard to pick your sources such that you can believe Dems are as opposed to you as they can be. Maybe think why you’re so into that rather than continue to look for examples that confirm your chosen narrative.

                  2. Yeah, Beto is a “major” Democratic candidate, who dropped out about a week ago after barely making a showing in polls.

                    1. Brett, the bill hadn’t passed yet either.

    4. If DACA is the morally right thing to do, then why aren’t you lobbying Congress to pass it as a law? Are the anti-Trumpers really willing to upend the lives of 800,000 people just to have a few more anti-Trump talking points rather than to change the law?

      This is not a “narrow, nitpicky, legal debate”. It’s a vital test of the constraints that keep our government in check.

      1. “If DACA is the morally right thing to do, then why aren’t you lobbying Congress to pass it as a law?”

        I won’t speak for bernard, but Democrats did submit the Dream Act in both houses of congress in 2010 and 2011. It was filibustered. There was a bipartisan Senate Dream Act bill introduced in the 115th and 116th Senate as well, but for some reason it has not made it out of committee. This year the House has already passed a bill. The Senate hasn’t voted on it, for some reason. (The President has threatened to veto it.)

        1. I’ll endorse NToJ’s response on my behalf.

          There was also an offer in 2018 to give Trump a lot of border money in exchange for his support.

          He ultimately rejected that. So, yeah. The Democrats are trying to get it passed.

          1. Again, it was a mere authorization offer. Subject to a future appropriation that would never be passed.

            Rube bait.

        2. A “Dream Act” that puts in a fix for under a million people is considerably less than 10% of what is needed here. Let the Democrats, the Republicans, or both suggest a solution to both the current problem, such as it is, of illegal resident aliens, and the related problem of large numbers of applicants for legal permanent residence. Then we might have a sensible conversation.

          1. In the current political climate, incremental change on this issue is the best you can hope for.

            1. I wonder if those enqueued and patiently awaiting approval for entry would have a different opinion. Rewarding bad behavior, whether or not it was unintentional, is a pretty good way to get more of it.

    5. Non-enforcement of an illegal and unwanted activity just gets you more of that activity. (see the effect of non-prosecution of shoplifting on the rate of shoplifting in california)
      We, generally and collectively as citizens, might feel poorly about shipping out people who have spent most of their lives here as a result of illegal actions of their parents.

      So if a dreamer is to obtain permanent resident status, a thing many americans might wish to offer, then there needs to be some penalty for the one who illegally brought them here: on their application for permanent residence, they must swear under oath and penalty of deportation themselves, the testimony as to who illegally brought them to the states.
      Either the dreamer came illegally (rectified by sending them back) or someone else brought them here illegally (rectified by sending that person back.)

      1. Making things punitive for illegals hasn’t proven a great disincentive.

        Eventually that thinking requires you start killing people. To make an example, of course.

    6. #1. Who says the rescinding of DACA will “upend the lives of 800,000 people”?
      Just because their illegal presence will no longer have it be a deferred prosecution doesn’t mean they will have any more of a target on their backs as the other tens of millions of illegal aliens, whose lives, in general, aren’t upended.
      #2. And even if they are deported, how is that a tragedy?
      Is every person, not on US soil, in a tragic situation?
      Deportation is not punishment. It merely returns a situation to what it was, before the law was broken, with no jail time served or fines imposed.

  19. Motives matter, and so it is improper for a President to use a discretionary power to do an end-run around Congress, even if the same power could be exercised properly in different circumstances. A President who doesn’t have the resources to enforce all the laws all the time – in other words, every President – must make choices, and those choices can be influenced by what the impact of nonenforcement will be, but using that power to achieve a result that Congress wouldn’t support by law is wrong, equally wrong as using emergency military construction as an excuse to build a wall that Congress wouldn’t appropriate funds for.

    1. Motives matter?

      Travel ban, anyone?

  20. If you’re not willing to go all rule of law in cases where you don’t like the law, you don’t actually give a shit about the rule of law, it’s just a convenient excuse to get your way when the law says something you like, and a nitpicky legal issue when you don’t like the law.

    You mean like Trump turning over his tax returns because the law says he has to, even though he doesn’t want to.

    I haven’t heard you complaining about his refusal, oh mighty Champion of the Law.

    1. You have a cite for the law that says he has to turn over his tax returns?

    2. “because the law says he has to”

      What law says he “has to?” I must have missed that one.

      1. Internal Revenue Code.

        Ways and Means committee.

        I know – you have some BS about it – “under audit” or whatever.

        1. The law says he has to in order for Congress to determine the effects of particular tax policies on people. Not so Congress can exact retribution against its political enemies.

          1. Actually, it just says he has to.

            That other stuff is made up.

            1. Haven’t we established after Romer v. Evans that animus prohibits the otherwise lawful use of power?

    3. “turning over his tax returns because the law says he has to”

      He is contesting what the “law” means in court. He has not refused to obey a final, non-appealable court order.

      Litigation to assert a right is part of the “law” too.

  21. I don’t entirely mind watching right-wingers ride their ugly intolerance all the way down to political irrelevance in modern America, because the Republicans will take the political aspirations of gun nuts, anti-abortion absolutists, polluters, and similarly situated elements of the conservative electoral coalition down with them.

    1. The primary “intolerance” being exhibited here is the intolerance for people continuing to profit from their parents’ crimes. Should we extend the same consideration to the offspring of Bernie Madoff? Those of Jeffrey Skillings?

      1. The families of madoff and skilling are financially better off today than if those men had pursued legal yet financially less lucrative crimes.
        But nonetheless those families did not get directly punished, as they were (seemingly) unwitting benefactors.
        Likewise while we might not send the dreamers back, someone is still the criminal mastermind who brought the kids here. Kids don’t get to keep legal status for themself, and mom and pop, grandpa grandma cousin etc.
        You can stay, but only if someone responsible goes.

        1. Well, family reunification should be dead last on the list of qualifications anyway…

    2. Fuck off, slaver.

  22. the administration still hasn’t put forward a theory of why it’s actually a good idea to subject DACA recipients to deportation,

    They’ve put forward several theories, the first of which is that it’s illegal.

    Somin insists on declaring theories he disagrees with to be non theories, because simply declaring them to be mistaken theories results in the need to pass judgement over the theory, yielding Trump in control (or the courts in a place they don’t belong).

    1. None of the theories you’re thinking of, whatever they are, were put forth in the case Prof. Somin is discussing.

      Why do you think that is?

  23. YO! What part of “Deferred” is too complex to understand?? What part of Exec Order is done or UNDONE by the SITTING POTUS don’t you understand?????

    Are you stupid or just Colluding to OBSTRUCT Constitutional Powers?

    Oh, wait, that’s right, Reason went full LIBTARD!

    Never go full LIBTARD! Never!

    Woe be tide and George Mason Law Students who have to suffer this idiotic imbecile!

  24. I don’t see where Ilya “Open Borders” Somlin reconciles “prosecutorial discretion” with the affirmative act of create a program to issue work permits and spend federal dollars without Congressional appropriations.

  25. DACA and the surrounding drama poses a question for me that no one can seem to answer. Because Obama was such too weak to actually push through a piece of actual legislation, he created the DACA program by executive order. Clearly, he was either unwilling or unable to invest the political capital to legislate the program (one with which I have no objections, by the way). If one president can create a program by executive order, why can’t another president rescind it? This seems to me to be the flaw in legislating by executive order; it’s a tool for a weak leader who can’t present a cogent argument to promote worthy legislation. It seems to me that a successor President should be able to undo anything created out of thin air by his predecessor.

  26. All of this was a waste of words…

    Anything one president can do with an executive order, the next one can undo. PERIOD.

    Don’t like it? Get a new law passed.

  27. 0blama claimed that this was purely “prosecutorial discretion”, when that was a blatant lie. It was his way to effect an amnesty for some illegal aliens.
    Lying about something means you are not doing it “faithfully” and thus he violated the portion of the Constitution that requires the president to “take Care that the Laws be faithfully executed”.
    It was, also in direct opposition to what Congress had just voted to not be the legal policy of the nation – that this group of illegal aliens not be granted preferential treatment. Something the SC had ruled was not within the purview of the president.
    Blatantly unconstitutional, by the written law and by judicial decree.

  28. It is silly for a Libertarian believer in liberty to defend the Executive making law. All your excuses are silly. If Congress wants to add 1,000,000 or more people to the country, they can enact a law. Then, the administrative functions of Government under the executive can administer the law. We need to reduce the power of POTUS, not just Trump but all presidents. The more harm caused by presidential illegal activity, the better to prevent future illegal presidential actions. If DACA is legal, then Trump can author executive orders that make DACA pale to insignificance.

    1. If the issue is whether the President should be free to ignore federal laws, from a libertarian perspective what’s the risk? While “Trump [could] author executive orders that make DACA pale [in]to insignificance”, they would be orders refusing to enforce federal laws. Why would a libertarian care? If President Obama doesn’t have to enforce immigration law, Donald Trump may not have to enforce the Brady Act? President Warren doesn’t have to enforce the Environmental Protection Act? Why would any of these make libertarians quiver?

  29. I’m curious about the claim that the 1986 Immigration Reform and Control Act authorizes the attorney general to extend employment authorization to illegal immigrants. You quote the law as specifically permiting employment of aliens who are “authorized … to be employed … by the attorney general.” I searched the text of the law (https://www.eeoc.gov/eeoc/history/50th/thelaw/irca.cfm) for the phrase “to be employed” and couldn’t find any relevant text. That phrase is used three times in the law, none of which seem to be on point:
    1. “A verification that an employee or prospective employee is eligible to be employed in the United States may not be withheld or revoked under the system for any reason other than that the employee or prospective employee is an unauthorized alien.”
    2. “In providing documentation or endorsement of authorization of aliens (other than aliens lawfully admitted for permanent residence) authorized to be employed in the United States, the Attorney General shall provide that any limitations with respect to the period or type of employment or employer shall be conspicuously stated on the documentation or endorsement.”
    3. “The President shall transmit to the ‘8 USC 1186 note’ Committees on the Judiciary of the Senate and of the House of Representatives reports on the implementation of the temporary agricultural worker (H-2A) program, which shall include … the number of foreign workers permitted to be employed under the program in each year”

    None of these seem to do what you claim the law does. Can you point me to the specific text that supports your point?

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