NRPLUS MEMBER ARTICLE C hief Justice Roberts, joined by the Supreme Court’s four liberals, restored the Obama administration’s 2012 Deferred Action for Childhood Arrivals (DACA) policy, on the theory that the Trump administration failed to analyze or to explain two aspects of DACA repeal. DACA was a major policy issue contested in public campaigns. Only one Justice (Sotomayor) even questioned whether the Trump administration had the legal power to repeal DACA. The Court, moreover, assumed for the purposes of the decision that DACA itself was illegal, and eviscerated the Obama administration’s legal theories for enacting it. If elections for the presidency cannot undo major executive branch policies, why bother having elections at all? And if it is harder to repeal illegal executive actions than to adopt them in the first place, we have completely lost the plot of how a nation of laws is supposed to work.
Today’s decision, Department of Homeland Security v. Regents of the University of California, is certain to further undermine public confidence in the democratic process, particularly among voters who chose Trump because they were dissatisfied with Obama-era immigration policy and thought that Trump would possess the same executive powers as his predecessor. It is also yet another episode of how badly our system of lawmaking operates when laws are not made by Congress. It represents the third time — following the “Muslim travel ban” and census-citizenship-question cases — that Roberts has written an opinion on a major immigration-related issue and concluded that the Trump administration’s power to act in this area depends on whether it has conducted a process that looks adequate to judges. It reflects, once again, how Trump himself consistently undermines his own presidential powers. Finally, it further elevates the stakes in the presidential race for voters who care about immigration.
DACA, DAPA, and Executive Lawmaking
Congress for many years now has been gridlocked over the “DREAM Act,” which would legalize the status of certain illegal immigrants who entered the United States as children. Unable to get the bill passed, Obama during his 2012 reelection campaign decided to use his “pen and phone” to unilaterally adopt the policy by executive fiat. Two years later, he expanded DACA with the DAPA program, no longer limited to childhood entries and covering six times as many people. Republicans, even some who supported the DREAM Act as legislation, went ballistic, and the issue was a major part of the presidential and congressional campaigns in 2012, 2014, and 2016.
Obama claimed that DACA and DAPA were legal because they were simply a matter of executive discretion not to deport people, as would be exercised in individual cases. But the policies went well beyond non-removal, and affirmatively instructed various agencies to provide “Dreamers” with federal benefits. The Fifth Circuit struck down DAPA on this basis; the Court would likely have agreed, but after Justice Scalia’s death, it deadlocked 4–4, leaving the Fifth Circuit’s decision as the last word on DAPA. The Court today explicitly rejected Obama’s argument in deciding that both DACA and its repeal went beyond the sort of prosecutorial discretion in individual cases that is immune from judicial review:
DACA is not simply a non-enforcement policy. For starters, the DACA Memorandum did not merely refuse to institute proceedings against a particular entity or even a particular class. . . . Instead, it directed USCIS to “establish a clear and efficient process” for identifying individuals who met the enumerated criteria. . . . Based on this directive, USCIS solicited applications from eligible aliens, instituted a standardized review process, and sent formal notices indicating whether the alien would receive the two-year forbearance. These proceedings are effectively adjudications [and] result [in] an affirmative act of approval, the very opposite of a refusal to act. In short, the DACA Memorandum does not announce a passive non-enforcement policy; it created a program for conferring affirmative immigration relief. [Quotations and citations omitted].
The Court did not squarely decide today whether DACA was illegal, but this blows a huge hole below the waterline of Obama’s legal theory. The question in today’s case was whether DHS properly treated DACA as an illegal policy, and the Court noted that Jeff Sessions had concluded that it was, and that DHS rules require it to take the Attorney General’s word as law (unless, of course, overruled by the courts). You might think that repealing an illegal policy should be a no-brainer, and Justices Thomas, Alito, and Gorsuch dissented on the basis that the government should not be required to continue breaking the law. As Justice Thomas thundered:
[DACA] was unlawful from its inception. The majority does not even attempt to explain why a court has the authority to scrutinize an agency’s policy reasons for rescinding an unlawful program under the arbitrary and capricious microscope. The decision to countermand an unlawful agency action is clearly reasonable. So long as the agency’s determination of illegality is sound, our review should be at an end . . . the majority erroneously holds that the agency is not only permitted, but required, to continue administering unlawful programs that it inherited from a previous administration.
The One-Way Ratchet
The Court’s opinion complained about two specific aspects of DHS’s decision. One, DHS failed to say that it had considered the possibility that it could undo DACA’s provisions for federal benefits without also suspending the non-deportation policy. Two, DHS failed to say that it had considered that people had made decisions relying on DACA.
On either point, the Court really has no answer for Justice Thomas’ view that if a policy is illegal, an agency has the right and duty to repeal the whole thing and go back to the drawing board, placing the onus on proponents of a more modest form of relief that is not illegal. The Court rather ridiculously argues that, because the original DHS memorandum never mentioned the fact that it would be better to let Congress decide the whole question, the Court could not consider that argument (which was discussed in a later analysis, at the request of the district court, by the Secretary of Homeland Security). But the superiority of letting Congress make the laws is a fundamental premise of our entire system of government, and it was extensively publicly debated for years and years of political arguments and legal briefs on DACA and DAPA. Everybody thought of that. While it would have been better staff work to mention this in the original memo on repeal — a theme we find endlessly in Trump administration actions — it is positively surreal to decide that the Court could not even consider the argument. (Justice Kavanaugh dissented entirely on the question of whether the later Homeland Security memo was properly part of the record in the case.)
What the Court did, by scrapping DACA repeal after almost four years of obstruction in the courts, is to give DACA the benefit of status quo bias: The illegal policy is not asked to justify itself, while the repeal is struck down in its entirety even when a portion of it was incontestably justified. A contrast to the 2012 Obamacare decision is noteworthy. Then, the Court found that Congress had done something unlawful — creating an unduly coercive mechanism for Medicaid — but the Court went out of its way to strike down only the illegal part (notwithstanding the lack of a congressional direction to sever it). Now, the executive branch must show that it considered severability. True, executive lawmaking is normally and appropriately put under a closer microscope than the work of Congress — but where Chief Justice Roberts bent the usual severability rules to bail out Congress’ failure to write a severability clause then, he now refuses to uphold even an agency’s withdrawing an illegal rule unless it has conducted a full severability analysis.
The second, “reliance interest” point — Trump cannot undo what Obama did illegally, because people relied on it in staying in the country — baldly puts a thumb on the scale in favor of the status quo, restricting in practice the power to change policy so long as anyone accommodates themselves to the old policy. Thomas accused Roberts of encouraging future executive lawbreaking:
Such timidity forsakes the Court’s duty to apply the law according to neutral principles . . . the majority’s holding creates perverse incentives, particularly for outgoing administrations. Under the auspices of today’s decision, administrations can bind their successors by unlawfully adopting significant legal changes through Executive Branch agency memoranda. Even if the agency lacked authority to effectuate the changes, the changes cannot be undone by the same agency in a successor administration unless the successor provides sufficient policy justifications to the satisfaction of this Court.
Worse, as Thomas noted, the Obama administration had defended DACA and DAPA in public and in court on the theory that the programs created no legally enforceable reliance interests. In the Obamacare cases, Obama was allowed to argue that the mandate was not a tax for political or legal-jurisdiction purposes, but was a tax for constitutional purposes. So here: The Obama administration’s own arguments were not permitted to be used against it.
Trump in a Box
The deliberate unreality of the Court’s analysis was partly Trump’s fault. Challengers to DACA repeal argued that the Equal Protection Clause required the government to continue an illegal policy, because (1) doing otherwise would have a disparate impact on Hispanics and (2) Trump was motivated by anti-Hispanic bias, as evidenced by various idiot things he said during the 2016 election cycle.
As happened in the travel ban and census cases, the Court rejected both of these constitutional arguments, with only Justice Sotomayor arguing that they had some merit. On the first point, the Court noted that a disparate-impact analysis would make it impossible to ever change immigration policy, given that “Latinos make up a large share of the unauthorized alien population.” On the second, the Court concluded that it was only analyzing the statements made in the administrative agency record by the Homeland Security Department — not by the president. In other words, both the constitutional ruling in favor of the Trump administration, and the Administrative Procedures Act ruling against it, required the Court to pretend that DACA repeal was a bureaucratic decision rather than a matter of great national policy debate. While there are functional reasons why administrative law works this way — otherwise, everyone challenging an agency rule could demand internal White House documents — it represents a further trend away from treating American lawmaking as if it is the result of popular debate and elections.
Vote and then Vote Again
As Justice Alito noted, the Court’s decision cannot be separated from the fact that a nationwide injunction was originally entered by a single district judge in 2017, and now the process has almost run out the clock of Trump’s first term (while Obama’s rule is still with us eight years and two elections later). Because the Court gave plenty of room for Trump’s DHS to just restart the whole rulemaking process (an exercise Justice Kavanaugh found to be silly and pointless makework), DACA repeal will still happen — if Trump is in office long enough for DHS to finish the task. For voters who care about this issue, that means it will be back on the ballot this fall. But for those who wanted Trump to repeal DACA, it also means that their votes have, thus far, counted for nothing.