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DOJ finally identifies the "constitutional defects" in DACA

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


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

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

The better understanding is that the reference to DACA's "constitutional defects" was framed in terms of the major questions and non-delegation doctrines, as Justice Gorsuch recognized in Gundy.9 But if there is any doubt about this important question, the government should be asked to represent its position about DACA's "constitutional defects."

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

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

In other words, "the reference to DACA's 'constitutional defects' was framed in terms of the major questions and non-delegation doctrines, as Justice Gorsuch recognized in Gundy."

George Will also discussed our brief in his latest column:

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

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

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

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