The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
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DACA) points out, the Trump administration's position in these cases relies heavily on the notion that DACA had to be rescinded because it is itself illegal.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.
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 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."