Justice Kagan asked which provision of the INA was violated by DACA

The answer, which the Solicitor General alluded to in his brief, turns on the relationship between the major question doctrine and the nondelegation doctrine


During oral argument in the DACA case, very little time was spent on whether the policy itself was lawful. Almost all of the questions from the bench concerned whether the cancellation memo was reviewable, whether Secretary Duke adequately considered reliance interests, and whether Secretary Nielsen's provided an independent basis to cancel DACA.

There was only one significant colloquy between Justice Kagan and SG Francisco about the legality of the policy. Here it is, slightly truncated for readability:

GENERAL FRANCISCO: And my final and critical point is that there's no limiting principle. The theory on which DACA rests effectively allows the government to create a shadow INA for any category of aliens that it chooses to make low-priority targets, a shadow second-tier INA. And you, at the very least, need to locate something in the INA that confers that kind of broad and unfettered discretion. And there is simply nothing there. But, again—…

JUSTICE KAGAN: You know, the INA does give quite a lot of discretion to administrative officers, as you yourself admit and have argued on previous occasions and, indeed, in part here. … are you saying that DACA was --violated any particular provision of the INA? What are you saying it violated? … -because there's a big delegation, right, that says you get to make national policy. So what did DACA violate? …

GENERAL FRANCISCO: But, secondly, we're not saying that there's a specific provision that it conflicts with. But what we are saying is that when you adopt this kind of broad and historically unprecedented program, you need to at least locate the authority to do so somewhere in the INA. …

JUSTICE KAGAN: --you know, they located the authority in the INA's grant of broad discretion over national immigration enforcement policy.

GENERAL FRANCISCO: Your Honor, I think that the most that does is it gives you the authority to set policies and priorities, but there's a big leap between that and saying that you can affirmatively facilitate violations of the INA by hundreds of thousands of individuals to whom Congress has repeatedly declined a pathway to lawful status.

I found Francisco's answer somewhat unsatisfying, but predictable. (I regret that the Court denied Texas's motion to argue as amicus curiae; it could have presented a much more forceful attack on DACA, as it did before the 5th Circuit with respect to DAPA). The federal government has always been cagey about precisely what the legal and constitutional defects were in DACA–for an obvious reason. The SG is usually not in the position to argue that federal law limits the executive's power. Here, of course the Trump Administration has taken exactly that position. What then, is the answer to Justice Kagan's question? Which provision of the INA does DACA violate?

Generally, when a party argues that some executive policy is illegal, she would contend that the policy violates a specific statute. That is, the statute authorizes X, and the government does something other than X. But the SG's arguments about DACA's illegality are different: if the statute in fact authorizes X, then the statute unconstitutionally delegates legislative power to the executive branch. To avoid reaching the conclusion, the court should presume that Congress did not intend to delegate to the agency the power to resolve such a "major question." Here, the major question did not consider forbearance of removal; rather it concerns bestowing benefits including work authorization on 1 million+ aliens. (Texas never challenged the prioritization aspect of DAPA and DACA.) As a result, the Court should find the action was ultra vires–that is, beyond the scope of delegated authority. In short, Kagan questioned the government about an argument it never made.

SG Francisco's answer comes as close as possible as the SG can get to articulating the nondelegation doctrine.

Later in the argument, Ted Olson seemed perplexed at what the "constitutional defects" were in DACA:

OLSON: The Attorney General specifically said that DACA was illegal and unconstitutional. I don't know where the unconstitutional came from because it didn't come from the Fifth Circuit.

The answer to Olson's question, which Francisco alluded to during oral argument, was spelled out in the SG's reply brief. I flagged it here:

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.

Regardless of whether the Secretaries placed any weight on that determination, by statute, they were bound by the AG's legal conclusions. (I suspect the DHS lawyers requested this sort of hedge because the agencies routinely rely on very broad–and in my estimation dubious–delegations of authority.) This rationale provides enough basis to support the cancellation of DACA.

The Cato Institute's amicus brief (which I co-authored) carefully explains the relationship between DACA, the INA, the nondelegation doctrine, and the major question doctrine. I maintain that this argument is the only viable path by which the Court can find that DACA is in fact illegal, and uphold the Attorney General's legal determination. Here is the key excerpt (pp. 18-19):

First, consider the regulation that authorizes the secretary to grant DACA recipients with work authorization, with which we can presume the attorney general was familiar.6 8 C.F.R. 274a.12(c)(14) provides a crystalline illustration of the elephant-in-mousehole framework. In 1987, the Immigration and Naturalization Service denied a petition for rulemaking to re-strict the issuance of work authorization to certain aliens. See Dep't of Justice, Immig. & Naturalization, Employment Authorization; Classes of Aliens Eligible, 52 Fed. Reg. 46,092 (Dec. 4, 1987). The government justified the denial, in part, because the number of such work authorizations would be "quite small"—so small, that the number was "not worth recording statistically." Id. at 46,092-93. Moreover, such authorizations would "normally [be] of very limited duration," and would be very rare. Id. at 46,092.

DACA operates in a very different fashion. The policy could provide roughly 1.5 million aliens with work authorization, and those authorizations could be renewed for years to come.7 This elephantine-sized grant of work authorizations—limited in neither size and "with no established end-date"—cannot conceivably be jammed into a not-statistically-significant mousehole. In every sense, this provision of benefits relies on a reading of federal immigration law that amounts to "an unconstitutional exercise of authority by the Executive Branch"—that is, the exercise of legislative powers. The attorney general's conclusion is consistent with the Court's admonition in Brown & Williamson: "Congress could not have intended to delegate a deci-sion of such economic and political significance"—the ability to provide work authorization to 1.5 million aliens—"in so cryptic a fashion."8

This argument does not in any way rely on policy rationales. If DACA, no amount of reliance interests can justify its continued enforcement.

NEXT: Today in Supreme Court History: November 14, 1922

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  1. “If DACA, no amount of reliance interests can justify its continued enforcement.”

    I think there may be a few words missing from that last sentence.

    So, the argument isn’t, “Statutory law forbids us to do this.”, it’s “Statutory law doesn’t authorize us to do this.” Not terribly confusing, though it is an unusual position for somebody in the executive branch to be taking.

    It shouldn’t be an unusual position, though…

    1. It has been strange watching one side argue that if something is not disallowed specifically, the government has carte blanche to do what it wants. This probably stems from a misunderstanding of the Constitution as a restrictions list instead of the granting of powers to the government (the truth being the latter).

      It is utterly mind boggling seeing Kagan not ask where a power stems from but merely seeking where it has not been denied. That is frightening.

  2. I read Francisco as all but abandoning the argument that the original DACA policy was illegal, focusing his argument on why the Supreme Court could find in the Administration’s favor without ever answering that question.

    And I also read Justice Kagan as being open to that argument. It’s all discretion. DACA was within prosecutorial discretion, and its rescission is also within that discretion.

    As you noted in an earlier comment, If the court delays issuing its decision until the end of the term, and lower courts also wait until towards the end of their timeframes to do things, the injunction likely wouldn’t get implemented get implemented until close to the end of Trump’s first term. If a Democrat gets elected, he or she could simply reinstate the policy.

    The court, if it uses this as its basis, could easily uphold the recession, decline to decide the legality of DACA as unnecessary to its decision, and yet hint in dicta that the justices suspect DACA was/is legal as within the same broad prosecutorial decision that makes the recision also legal.

    1. Hard to see how one might read it a different way.

      Though I do understand how one might want their brief to be relevant.

    2. The original argument that DACA was just about prosecutorial discretion doesn’t work. It bleeds into too many other things; DACA recipients aren’t just living here in a vacuum. They want green cards, purchase land, apply for citizenship, join the military, etc.

      1. The Court doesn’t have to agree with you to dismiss the present action. They can just conclude that canceling DACA is non-reviewable. Simple.

      2. These people were brought here as KIDS. Their parents violated the law. We don’t hold Children responsible for the Crimes of their parents. And sending them packing to countries were they were born but were raised here. I see that this is an issue of what the law says. But Sending these Men and Women back to countries that are alien to them is Utterly Wrong.

        1. We don’t hold children responsible for the crimes of their parents, but we don’t let them keep the ill gotten goods, either. If you rob a bank, and give the money to your child, when you’re caught the child loses the money. If you break into somebody’s house and squat in it with your child, you both get evicted when caught, they don’t get jailed, but they don’t get to live there, either.

          Nobody is suggesting penalizing the “dreamers”, we just want to deprive them of the ill gotten goods.

          Not even that. Most people are OK with finding some way to let them stay, so long as it doesn’t result in establishing that other people get to bring their children here illegally and force us to accept them.

          The problem has been that THAT is exactly what the Democrats want to accomplish, they view the “dreamers” as just a wrecking ball to destroy our immigration laws with.

          1. Most people are OK with finding some way to let them stay,

            No they’re not. They talk about it, but won’t actually do it. It’s too convenient to have the issue to stir up the base with.

            1. I’m talking about the public here, not members of Congress.

            2. Right. Democrats refuse to do anything on the subject to fix it permanently. Preferring instead to use these people as cheap political props instead.

        2. Mark, what do you think happens to children of kids whose parents commit crimes? Many are taken from their homes and put into the foster system. Why should these kids be treated sufficiently differently?

          You keep claiming the kids were raised here but under a third were younger than 10 when brought to this country, they were not raised here for the large majority. Likewise almost half still speak majority foreign language, they have not assimilated and have no way of going back home.

          Stop arguing from sympathy instead of logic.

          1. We have an opportunity to take an awful system and make it not as awful in this one place.

            The fact that there are different systems awful in another way doesn’t mean we can’t help in this one little way.

            And once again, Jesse, check your stats about the age when they were brought into the US. I fear you’re taking some liars’ sources as true.

            It’s telling that you feel the need to jockey with the facts to make the narrative marginally less sympathetic.

  3. Also, I find it surprising that there’s been no post on the oral argument in Hernandez v. Mesa, another important alien-related case decided the same day, which got considerable Conspirator attention before the oral argument.

    1. Jeffrey Wall left a good law firm to argue that a border agent should be enabled to shoot and kill a brown child without cause or accountability.

      To most of the Conspirators, Mr. Wall is a hero, but they seem to understand that this should be a quiet heroism . . . at least while they are still attempting to fit into decent, mainstream society.

      1. Rev. Arthur T. Kirkland,

        Justices Stevens and Ginsburg said that the method used to conduct a termination procedure isn’t any business of the United States. Why should it matter here? After all, the whole point of Roe was that it’s perfectly OK to kill a brown child a few minutes from birth because the Bill of Rights lacks “prenatal application.” Indeed, it said that efforts to impose cause and accountability can unconstitutional and the role of the court is to defend against those who would impose cause and accountability on the free choice.

        Given that the Bill of Rights equally lacks “extraterritorial application,” what makes this any different? No “application”, no government intruding and imposing cause and accountability. Are you suddenly getting religion, sir?

        1. Decency sir? You would intrude on american’s freedom of choice because you think freedom indecent? You horrible, hateful fundamentalist if fanatic! Everybody knows that “decency” is nothing more than a code word for bigotry, hate, and laughably Paleolithic thinking. You told us that yourself, regularly, until only just now.

          I sincerely hope your newfound theocratic religious decency that you now seek to impose on others doesn’t lead you to violence.

    2. The events at issue in that case happened in 2010. No way to lay it at the feet of the evil orange man, nor to connect it to the evil orange man’s policy on immigration.

      1. True.

        I don’t get the failure to prosecute at the time.

        1. You can’t be that naive. All the excuse the government needs to fail to prosecute ANYBODY is, “They work for us.” In this case they had a lot more excuse than that, the shooting actually took place during a violent riot while the agent in question was being stoned, something that tends to get left out of accounts.

          1. Brett,

            There was no riot. There were some smugglers throwing rocks at the agents. Mesa claimed that Hernandez was throwing rocks, but cell phone video showed that to be false.

            Mesa was exonerated by CBP, so yeah, “they work for us.”

            1. That’s some cute nit picking, claiming that there wasn’t a riot, just people throwing stones at the agent.

              Maybe Mesa lied, maybe Mesa made a mistake. I’m not predisposed to think he deliberately shot a kid who wasn’t any threat, but law enforcement does attract some awful people sometimes, so I wouldn’t rule it out, either.

              But it is hardly shocking that Mesa didn’t get prosecuted. Government employees hardly ever get prosecuted, even when the wrongfulness of their conduct is clearer than this case.

  4. So the argument boils down to the classic question that children face – are we only allowed to do the things we are specficially told we can, or are we allowed to do anything we want unless specifically told otherwise?

    So does the INA allow the President to do anything he wants unless its specifically prohibited (a strange position for Kagan to take, given the long term implications), or does it only allow a President to do the things it speclifically authorizes?

    1. There may be some aspects of the original DACA EO that are more vulnerable to challenge than the prioritization, but I don’t know why it would be “a strange position” for Justice Kagan (or any other Justice) to agree that the President has more than no discretion in enforcing federal law.

      1. It sounds like she is arguing that the President can do what he wants unless the INA says otherwise. That would give the President enormous powers to do things that she might not like.

        1. For some reason the left just naturally assume over-reaching power will be exercised by their own guys, and dismiss its exercise by the other side as a temporary anomaly which will be corrected in time, and is no excuse to actually deny their guys the power.

          They prefer to deal with abuses by the other side on a case by case basis, rather than reining them in systematically in a manner that might constrain them, too.

  5. Regardless of DACA’s legality, no one can argue in good faith that the APA prohibits Trump from ending it.

    1. The “in good faith” train left the station about 15 years ago with the last set of passengers…

      1. Yeah, after Roe v. Wade.

  6. In effect, Obama’s executive orders on immigration policy can only be overturned by acts of Congress. The court will keep delaying action on any of Trump’s executive orders that Dems don’t like until there is another Dem president. So much for the rule of law.

  7. Obama himself stated with great clarity, a number of times, why DACA would be illegal. I won’t even call it an argument, just a statement of Constitutional law. But eventually, he argued that he had to do it anyway as a “stopgap” because Congress “failed to act.” I doubt that even Obama imagined the courts would allow the “stopgap” to continue this long.

    Obama is far from unique in this sort of thing. Obama joined a long line of Presidents and others willing to blatantly trash the Constitution to do “the right thing” in their mind. It’s very classically Lincolnian.

    1. I thought he was a bit unusual, though, in saying something was unconstitutional before doing it. But I guess Lincoln went there, too.

      1. I’m not surprised, based on some of Obama’s other actions. For example, his declaration that he said when the Senate was in session.

        Obama knew Congressional law, but didn’t “believe” in it.

        1. Like many legal scholars, Obama studied the Constitution the way pest exterminators study insects, or a sapper studies fortifications: To learn how to best undermine it.

    2. DACA is not the Dream Act.

      It’s amazing how I keep correcting you and yet you keep forgetting.

      1. No it is not. The Dream Act died in Congress. DACA is Obama attempting to enact the dream act through executive action.

      2. DACA is not the Dream Act.

        It’s amazing how I keep correcting you and yet you keep forgetting.

        Wow. You dishonestly mischaracterizing someone else’s comments? I’m shocked…SHOCKED, I tell you!

        What Obama described as beyond his constitutional authority was not specifically the Dream Act. It was unilateral executive action that effectively altered immigration law. From his own mouth:

        “I am not king. I can’t do these things just by myself.” In March 2011, he said that with “respect to the notion that I can just suspend deportations through executive order, that’s just not the case.” In May 2011, he acknowledged that he couldn’t “just bypass Congress and change the (immigration) law myself. … That’s not how a democracy works.”

        1. He didn’t do any of those things in italics, so again I don’t see why you think this argument has legs.

          1. Wait, you’re literally claiming that he didn’t suspend deportations through an executive order?

            1. My claim is that from context he was talking about suspending all deportations, not deprioritizijg some deportations.

              1. Here’s the question he said that in response to: “What if at least you grant temporary protective status, TPS, to undocumented students? If the answer is yes, when? And if no, why not?”

                So, no, you’re wrong: He wasn’t asserting that he lacked the authority to just up and stop deporting people at all. He was asserting he lacked the authority to do exactly what he later did: Systematically defer deportations of a selected class of people.

              2. Here you go, a nice link to the official transcript.

                He was quite clear about not having the authority to do exactly what he later did.

        2. That’s Sarcastro’s basic go-to. Dishonestly mischaracterize FTW.

          1. That you leap to call those who disagree with you liars is not surprising.

            1. No. Just you. Based on past actions.

            2. Dishonest characterization of his opponents was Sarcastr0’s original method of trying to be funny.

              When he turned serious the only thing he changed was the futile attempt at humor.

    3. Why is it wrong wanting to prevent Law from deporting immigrants who did not make the conscience decision to violate our borders. And keep in mind that the vast majority of those that are undocumented did not CROSS TBE BORDER ILLEGALLY. The Overstayed their Visas.

      1. The law was passed by Congress in a proper exercise of their Constitutional authority. The law can be changed by Congress in a proper exercise of their Constitutional authority.

        When the executive acts to make, amend, or contravene the law, that is an illegitimate action. They have no lawful authority, but instead breach the Constitution and impose their will by sheer force. The Constitution has arguably been breached and rendered void a thousand times over. If everyone is not bound by it, then why should we believe that anyone is?

  8. DACA is discussed as if it were law. And that’s the problem – it is not law, it is arbitrary seat-of-the-pants leglislating by the executive. At SOME point the court has to decide that the executive is not the legislative branch, and does not have legislative powers. Anything else is sophistry.

    More importantly to me – it seems an indisputable fact that what one president CAN do, another can undo. By definition. So Trump should have ordered DACA ended, and then made his own policy, respecting legislative prerogatives. Sadly, he didn’t.

  9. There is nothing unsatisfying about the answer at all. Obama didn’t decide to prioritize enforcement towards one area or another. He decided to declare an entire class of people immune from enforcement of the law. If an executive is allowed to do that, then what law would have any meaning at all?

    Suppose I am a District Attorney in a state that does not have the Castle Doctrine. My side has tried to get it enacted for years and the state legislature has refused. By the logic of DACA, I could as a DA just degree that anyone accused of murder while defending their home will not be charged with a crime. I have effectively enacted the Castle Doctrine by systematically refusing to enforce the murder and assault laws against those who would be covered by it were it to be law.

    That is exactly analogous to what Obama did with DACA. He wanted a certain class of people to be granted legal status in the country despite the clear terms of the INA. He could not get the Congress to amend the INA. So, he accomplished that by just declaring the class immune from prosecution under the INA.

    If executives, be it the President or your local DA are allowed not just to pursue individual cases but declare entire classes of offenders immune from prosecution, then no law has any force without the agreement of whoever has been elected to enforce it.

    1. What would you prosecute them for. With all due respect IT’S CRUEL to punish those brought here as children by parents. The Law is in conflict at this point. On the one hand The Law is pretty Clear. But on the other hand You are punishing DACA People for crimes their parents commit.

  10. “ GENERAL FRANCISCO: And my final and critical point is that there’s no limiting principle.“

    When did it become common practice to address (or refer to) a solicitor general, attorney general, or postmaster general as “general”?

    He’s not a general! He’s a solicitor—a general solicitor. As in French, in these examples they just happen to place the adjective after the noun. Are we that stupid?

    1. I think we’ve been around this one before.

      IMO your complaint applies to military officers as well. A lieutenant general, for example, is not a “general” but a general lieutenant, though I must admit the Army disagrees.

      1. And That means Your wrong. A Lt. General is Still Considered a General. The Navy Ranks.

        E-1 Seaman/Fireman Recruit (SR/FR)
        E-2 Seaman/Fireman Apprentice (SA/FA
        E-3 Seaman/Fireman (SN/FN)
        E-4 Third Class Petty Officer.
        E-5 Second Class
        E-6 First Class
        E-7 Chief P.O.
        E-8 Senior Chief
        E-9 Master Chief
        O-1 Ensign
        O-2 LT. JG
        0-3 LT
        0-4 LT. CMDR
        0-5 Commander
        0-6 Captain
        0-7 Rear Admiral Lower Half
        0-8 Rear Admiral Upper Half
        0-9 Admiral
        0-10 Fleet Admiral (Only in times of War).

        When I was in we addressed All Levels of the Admiral Rank as ADMIRAL. Or REAR ADMIRAL.

  11. I think the administration’s best argument is this:

    Suppose the Administration were to set up a marijuana regulatory program, with 2-year sale permits with $500 application fees and written criteria for exceptance, and with members of the DOJ paid to administer the program, as an exercise of its prosecutorial discretion to enforce the drug laws, without any congressional authorization. Could the administration do that?

    Not prosecuting, yes. But sale permits, permit fees, an administrative staff?

  12. Francisco’s caginess most irked me when some of the more liberal justices appeared more concerned with the most sympathetic version of the facts rather than what precedent and the law says. I thought a lesson about the separation of powers was in order.

    The reliance interests were described as significant by some justices; Francisco did not directly rebut but at various points suggested the interests were slight. I wanted Francisco to be direct and to alert the justices to the fact that determinations about agency budget and priorities are properly the domain of the agency – not the courts. As to whether the agency properly considered reliance interests, a couple of the liberal justices stressed the unfortunate position of immigrants so much that it is hard to imagine what legislative or executive rule or action would satisfy them, outside yet a further expansion of execution discretion outside the bounds of the law.

    1. Done to perfection, Crispy. Well stated.

  13. Nothing so far has persuaded me that there is any coalescence concerning which questions ought to be addressed first, and which might be avoided. This makes me fear that the case will be decided based on very poor rationales and create havoc where there has been plenty of it thus far.

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