The Volokh Conspiracy
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I previously blogged about the administrative law issues in the DACA case (here and here), as well as the equal protection issues. Here, I will talk about the unresolved separation of powers issues underlying DACA. Justice Thomas addressed this issues in his dissent, which was joined by Justices Alito and Gorsuch, but not Justice Kavanaugh. Thomas's dissent echoed the Cato Institute's amicus brief with respect to the Non-Delegation Doctrine, the Major Question Doctrine, an "Adverse Possession" theory of Executive Power, and the Take Care Clause.
The Non-Delegation Doctrine
First, Justice Thomas addressed the non-delegation doctrine. If Congress had in fact given DHS the authority to implement DACA, then federal immigration laws would violate the non-delegation doctrine.
In my view, even if DACA were permitted under the federal immigration laws and had complied with the APA, it would still violate the Constitution as an impermissible delegation of legislative power. See Department of Transportation v. Association of American Railroads, 575 U. S. 43, 77 (2015) (THOMAS, J., concurring in judgment). Putting aside this constitutional concern, however, the notice and comment process at least attempts to provide a "surrogate political process" that takes some of the sting out of the inherently undemocratic and unaccountable rulemaking process.
We offered a similar conclusion in our amicus brief:
If the previous administration's boundless reading of immigration law was correct, Congress would have unconstitutionally delegated legislative authority to the executive branch. Indeed, leading immigration scholars—whom the government cited—endorse such an expansive conception of statutory delegation.
The Major Question Doctrine
Thomas discussed the non-delegation doctrine after considering the closely-related major question doctrine. Specifically, the broad definitional statutes should not be read to confer such vast authority: 6 U.S.C. § 1103(a)(3) and 6 U.S.C. § 202(5).
Finally, DHS could not appeal to general grants of authority, such as the Secretary's ability to "perform such other acts as he deems necessary for carrying out his authority under the provisions of this chapter," § 1103(a)(3), or to "[e]stablis[h] national immigration enforcement policies and priorities," 6 U. S. C. § 202(5).
Cato flagged both of these statutes:
In short, the case for DACA's statutory legality hangs on only two provisions of the U.S. Code: 6 U.S.C. § 202(5) and 8 U.S.C § 1103(a). Can the authority for DACA be found within the four corners of these statutes? No.
Thomas wrote these statutes cannot confer such vast authority.
Basing the Secretary's ability to completely overhaul immigration law on these general grants of authority would eviscerate that deliberate statutory scheme by "allow[ing the Secretary of DHS] to grant lawful presence … to any illegal alien in the United States." Not only is this "an untenable position in light of the INA's intricate system," but it would also render many of those provisions wholly superfluous due to DHS' authority to disregard them at will. Duncan v. Walker (2001).
Next, Thomas brings in Whitman and UARG, canonical major question cases:
And in addition to these fatal problems, adopting a broad interpretation of these general grants of authority would run afoul of the presumption that "Congress … does not alter the fundamental details of a regulatory scheme in vague terms or ancillary provisions." Whitman v. American Trucking Assns., Inc. (2001). And it would also conflict with the major questions doctrine, which is based on the expectation that Congress speaks clearly when it delegates the power to make "decisions of vast economic and political significance." Utility Air Regulatory Group v. EPA (2014) (UARG). … The immigration statutes contain a level of granular specificity that is exceedingly rare in the modern administrative state. It defies all logic and common sense to conclude that a statutory scheme detailed enough to provide conditional lawful presence to groups as narrowly defined as "alien entrepreneurs," is simultaneously capacious enough for DHS to grant lawful presence to almost two million illegal aliens with the stroke of a Cabinet secretary's pen.
And once again, Cato sounded a similar note:
Second, the attorney general's analysis echoed an-other important attribute of modern nondelegation doctrine: the provision of work authorization to 1.5 million aliens was a major question of "deep 'economic and political significance' that is central to this statutory scheme." King v. Burwell, 135 S. Ct. at 2489 (quoting UARG, 573 U.S. at 324)). Indeed, the attorney general stressed that DACA sidestepped Congress "after Congress' repeated rejection of proposed legislation that would have accomplished a similar result."
Adverse Possession Theory of Executive Power
Second, defenders of DACA argued that past practice supports the legality of the deferred action policy. Justice Thomas emphatically rejects this argument in Footnote 6:
FN6: In the DAPA litigation, DHS noted that some deferred-action programs have been implemented by the Executive Branch without explicit legislation. But "'past practice does not, by itself, create [executive] power.'" Medellín v. Texas (2008) (quoting Dames & Moore v. Regan (1981)). If any of these programs had been challenged, it would seem that they would be legally infirm for the same reasons as DACA.
Cato also rejected this "adverse possession" argument, with a citation to Medellin.
The Court has, at times, endorsed this sort of "adverse possession" approach to the separation of powers. NLRB v. Noel Canning, 573 U.S. 513, 526 (2014) (quoting Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 610 (1952) (Frankfurter, J., concurring); id. at 613 (Scalia, J., concurring). That is, the president can accumulate new constitutional powers "by engaging in a consistent and unchallenged practice over a long period of time." Id. at 613–14. But see Medellin v. Texas, 552 U.S. 491, 532 (2008) (quoting Dames & Moore v. Regan, 453 U.S. 654, 686 (1981)) ("Past prac-tice does not, by itself, create power."); Josh Blackman, Defiance and Surrender, 59 S. Tex. L. Rev. 157, 164 (2018) (noting that "courts favor purported defiance over voluntary surrender") (citing McPherson v. Blacker, 146 U.S. 1, 35–36 (1892)).
Thomas could have picked up our alternate argument. Medellin and related cases only concerned constitutional power. The DACA case considered an aggrandizement of statutory power.
But the Court has never sanctioned the extension of a Frankfurterian gloss to the statutory context. The president cannot accrete new legislation-based powers because Congress has acquiesced to similar accretions in the past. The legality of DACA must stand or fall by virtue of the authority delegated by 6 U.S.C. § 202(5) and 8 U.S.C § 1103(a), not based on whether Congress has acquiesced to past invocations of those authorities.
I had not seen this argument made before. It should be used.
The Take Care Clause
The majority opinion seems to countenance a remedy in which the court can require the agencies to continue enforcing a policy, even if it is illegal.
No court can compel Executive Branch officials to exceed their congressionally delegated powers by continuing a program that was void ab initio. Cf. Clinton v. City of New York (1998); INS v. Chadha (1983). In reviewing agency action, our role is to ensure that Executive Branch officials do not transgress the proper bounds of their authority, Arlington (ROBERTS, C. J., dissenting), not to perpetuate a decision to unlawfully wield power in direct contravention of the enabling statute's clear limits.
Under our precedents, DHS can only exercise the authority that Congress has chosen to delegate to it. In implementing DACA, DHS under the Obama administration arrogated to itself power it was not given by Congress. Thus, every action taken by DHS under DACA is the unlawful exercise of power. Now, under the Trump administration, DHS has provided the most compelling reason to rescind DACA: The program was unlawful and would force DHS to continue acting unlawfully if it carried the program forward.
The majority would probably counter that if the agency does not comply with the APA, the APA would require the agency to continue enforcing a policy, even if it is illegal. Our Cato brief anticipated this argument. We grounded our response in the Take Care Clause. The APA would be unconstitutional, as applied, if it forced the executive branch to continue enforcing an illegal policy. No statute can require the President to stand by idly while his subordinate violate the law.
Likewise, the executive branch does not need the judiciary's permission to cease enforcing a regulation it determines to be unconstitutional. Indeed, the APA would be unconstitutional, as applied, whenever its regulatory manacles required the executive to continue enforcing an unconstitutional policy.
Here, the attorney general determined that DACA had "constitutional defects," in light of the Fifth Circuit's decision in Texas v. U.S, and the major questions doctrine. The Court should defer to this reasonable interpretation of the president's duty to faithfully exe-cute the law because it avoids nondelegation problems. In other words, courts should allow reversals of novel execution actions that expand presidential power.
We are grateful that at least three of the Justices considered these important separation of powers issues.