//  9/5/17  //  In-Depth Analysis

When Donald Trump announced he was running for President of the United States, he delivered a now infamous speech labeling Mexican immigrants criminals and rapists. After descending the escalator at Trump Tower, he said:

The U.S. has become a dumping ground for everybody else's problems.

… When Mexico sends its people, they're not sending their best. They're not sending you. They're not sending you. They're sending people that have lots of problems, and they're bringing those problems with us. They're bringing drugs. They're bringing crime. They're rapists. And some, I assume, are good people. 

Almost two years later, Trump has made clear those words are more than just campaign rhetoric—they’re also how he governs and how he and his supporters view the Latinx community.

Trump is apparently set to announce today that he’s made the cruel decision to end the Deferred Action for Childhood Arrivals program.  Scratch that—Trump is apparently too cowardly to make the announcement himself, so he’s having Attorney General Jeff Sessions do it, and without taking any questions afterwards. DACA is the program that gave certain young adults who were brought to the United States as children the authorization to work in the United States, and the ability to access a litany of public benefits that most of us take for granted every day.

The reasons Trump has given for (apparently) ending DACA don’t hold up all that well, and unpacking them makes clear why. Ending DACA is not a principled standard about the separation of powers.  Rescinding DACA either caters to a base that wants the United States to be unthinkably cruel to immigrants, or fulfills officials' desire to force immigrants into hopeless, difficult situations.

As an initial matter, I want to flag the argument that eventually led a district court in Texas and the U.S. Court of Appeals for the Fifth Circuit to enjoin the Deferred Action for Parents of Americans program. (The Supreme Court split 4-4 in the case, United States v. Texas.) DAPA provided a variety of benefits to undocumented persons whose children are American citizens.  No court ever found that DAPA was unconstitutional.  Rather, DAPA was enjoined because it purportedly violated the Administrative Procedure Act in that the Obama administration did not adopt DAPA through notice and comment rulemaking.

If that is the problem with DACA, why won’t the administration just adopt DACA through notice and comment rulemaking?  If people think that the Trump administration could not adopt DACA through notice and comment rulemaking, they should stop faulting the Obama administration for failing to have done so. 

Now consider the claim that DACA is unconstitutional because DACA had to go through Congress and the lawmaking process.  This claim might be slightly more credible if it came from an administration that had not embraced expansive views of presidential authority, particularly over immigration.  But the argument has several other problems with it as well. 

Republican legislators voted against doing DACA legislatively.  In the last few weeks, as Trump repeatedly and publicly toyed with the possibility of ending DACA, several Republicans urged him not to do so. Paul Ryan urged him not to end DACA. Jeff Flake spoke out in favor of protections for DACA recipients.

It’s worth remembering that these people have a way to ensure the President doesn’t end DACA.  It’s called legislation.  Congress could pass a bill that established a path to lawful status for DACA beneficiaries, and it could authorize them to work in the United States and access public benefits while they worked toward that status.

If these ideas sounds familiar, they should. They were part of a bill known as the “DREAM Act” (indeed, the bill, which went further and did more than DACA does, is part of why DACA beneficiaries are known as DREAM-ers).  President Obama urged Congress to pass the bill; the then-Democratically controlled House passed the bill; and the Senate failed to.  It’s worth it to take note of who voted for the bill and who didn’t. Representatives who voted against the DREAM Act can’t very easily say they want DACA to be done legislatively, because they opted not to do so.  So their opposition to DACA isn’t about whether DACA should go through the legislative process or the executive branch.  Their opposition to DACA is an opposition to the underlying policy of allowing young adults who were brought to the United States as children to work in the United States and live without being in constant fear of deportation.

So who are the Senators whose votes indicate they oppose DACA as a policy? Some of these names might look familiar:

(1) Jeff Sessions (now the Attorney General of the United States)

(2) Mitch McConnell

(3) Lindsay Graham

(4) Chuck Grassley

(5) Lamar Alexander

There are many more.  Indeed, only three Republican Senators voted for the bill and two of those Senators are no longer in the Senate—Richard Lugar (then a Senator from Indiana); Lisa Murkowski (one of the heroes in the health care saga); and Robert Bennett (then a Senator from Utah). 

So every other Republican who was in the Senate in 2010 except for the three who didn’t vote (Orrin Hatch, Jim Bunning, and Judd Gregg) voted against “doing DACA legislatively.”  (I’ve intentionally declined to mention the two other Senators who were also heroes in the health care saga, but yes those two also voted against the DREAM Act.)

There are three possible explanations for these Senators’ votes—one, these Senators disagree with DACA as a policy, and the “constitutional” arguments for why “DACA has to be done legislatively” are just window dressing; two, these Senators agree with DACA as a policy but viewed the benefits it would create for millions of immigrants as less important than the chance to deny a legislative win to Obama, the first black President (and thus increase the chance that he would be a one term President, as Mitch McConnell announced was his goal);  or three, they’ve had a change of heart in the last seven years. 

If the Senators have had a change of heart or if they voted against the DREAM Act solely because Obama supported it, they’re in luck because many of the Senators who voted for the DREAM Act are still in the Senate.  Lisa Murkowski is still there and so are many of the 50 some Democrats who voted for the bill.   Thus, the Republicans who want DACA done legislatively could vote with Democratic Senators for legislation that enacts DACA into law.  If they don’t, perhaps they just don’t support DACA as a policy. Or they know that their constituents, who flocked to the man labeling Mexicans as criminals and rapists, don't support DACA as a policy.

Now, the Republican-controlled House would also have to pass a bill for DACA to become law.  But that shouldn’t be a problem either since Paul Ryan, the Speaker of the House, also apparently doesn’t want the President to end DACA.  And again, if he doesn’t want the President to end DACA, there’s a way to make that happen—it’s called legislation.  And he could work with Democrats to enact that legislation. (If you’re wondering how Paul Ryan voted on the DREAM Act in 2010, I’ll spoil the surprise—he voted against it.) 

The administration endorses expansive views of the President’s authority over immigration when it wants to.  Last week, Greg Sargent wrote about how the administration is more than happy to take expansive views of executive power and discount the separation of powers when it furthers their policy agenda. Yesterday, Mike flagged the inconsistencies between the President’s position on DACA’s lawfulness and the President’s position in the Muslim ban case. As Mike pointed out, the Trump “administration's position on the statutory question in the [Muslim] Ban case is more or less what one would expect from most administrations: presidents typically assert that acts of Congress grant them broad discretion.”

But that’s the same argument the administration could make for why DACA is lawful too—the immigration statutes grant the President broad discretion  in establishing enforcement priorities over deportations, parole, and employers’ hiring practices. After exploring some possible arguments for reconciling the administration’s positions, Mike concluded “color me skeptical about the possibility that the Trump administration's positions with respect to DACA and the Travel Ban reflect careful and disinterested parsing of the wording of the respective statutes.”

But there’s even more to say about the tensions between the administration’s position in the entry ban litigation and DACA than what Mike noted.  The administration’s entry ban brief opens with a statement about the breadth of the President’s authority over immigration.  Page 4 of the brief quotes a case for the proposition that the Constitution gives the executive “inherent authority” over “[t]he exclusion of aliens.” (The case does not, as some cursory readers have suggested, say that the President has the constitutional authority to defy Congress with respect to immigration, only that he has some constitutional authority over immigration even in the absence of a statute giving him some authority). 

If that’s right, then the President also has the constitutional authority to admit non-citizens into the United States. And it would be a strange power of admission if the President’s authority to admit non-citizens into the United States was merely the authority to admit them into the United States only to have to turn around and deport them immediately, rather than deferring their deportation for some period of time. 

But the administration’s position in the entry ban litigation is even more breathtakingly broad than an argument that the President has the authority to exclude or admit non-citizens. In the entry ban litigation, the administration has taken the position that federal courts may not even review the President’s decision to exclude non-citizens.  As the administration said with respect to the entry ban:

Respondents’ challenges to the Order are foreclosed by the general rule that federal courts may not second-guess the political branches’ decisions to exclude aliens abroad. The Court has permitted limited review only where a U.S. citizen contends that exclusion of an alien violates the citizen’s own constitutional rights. That principle forecloses review.

 Lest you think the administration limited its position to the exclusion of non-citizens abroad, here is the administration approvingly quoting Justice Jackson for the propositions that:

(1) “[A]ny policy toward aliens is vitally and intricately interwoven with contemporaneous policies in regard to the conduct of foreign relations, the war power, and the maintenance of a republican form of government.”

(2) “Such matters are so exclusively entrusted to the political branches of government as to be largely immune from judicial inquiry or interference.”

Now, as the administration begrudgingly acknowledged in the entry ban litigation, the President’s decisions are, at a minimum, reviewable where they affect the constitutional rights of U.S. citizens. Which takes me to the next apparent inconsistency in the administration’s positions.

The administration argues that states don’t have standing to challenge the President’s immigration decisions when it wants to.  One of the plaintiffs challenging the administration’s entry ban and suspension of the refugee program is the state of Hawaii.  In order to challenge a policy in federal court, a plaintiff must establish that she has standing, and that the challenged policy injures her.  Hawaii has argued that the President’s executive order injures Hawaii in several respects—it prevents students from the banned countries from enrolling in Hawaii’s universities; it prevents tourists from the banned countries from visiting Hawaii; and it prevents Hawaii from resettling refugees in accordance with its own laws.

In the entry ban litigation, the administration is arguing that those injuries aren’t sufficient to allow Hawaii to challenge the President’s executive order.  Those injuries, the administration insists, are “speculative, not actual or imminent” and “do not stem from the violation of a constitutional right for which Hawaii might seek limited review” of the President’s entry determination.  The administration also denies that Hawaii could be injured as a sovereign state because “it has no sovereign or other cognizable interest in regulating or compelling the entry of aliens from abroad in the first instance.”

Why can’t the Trump administration make that same argument in the event that Texas makes good on its threat to sue the administration to end DACA?  There too, Texas is arguing DACA will injure Texas financially (by requiring it to extend benefits to DACA beneficiaries) and injure Texas as a sovereign (through similar mechanisms).

Jeff Sessions can bring himself to argue for a position in court that might go against a “court order” or be “unconstitutional.”  The New York Times reported that “In a meeting at the White House, Mr. Sessions informed Mr. Trump that he would not defend what he considered an unconstitutional order in court.”

It is interesting that DACA crossed the line for what arguments Sessions could not bring himself to make in court. DACA has never been held unconstitutional by any court; DACA has not been held unconstitutional by any judge. Neither was DAPA, as I noted earlier.

Compare the argument that DACA is lawful with some of the positions that Sessions is willing to take in court. He has found himself capable of disagreeing with federal courts when he wants to.  His DOJ is disagreeing with the many federal courts that have concluded Texas’s recently enacted voting restrictions are unlawful because they were enacted with discriminatory intent, and specifically to disenfranchise voters of color.  Despite many different courts coming to the same conclusion about the legality of Texas’s law, Sessions has insisted on taking the position that Texas did not enact its law in order to disenfranchise voters of color.

Sessions has also gone out on a limb for other positions as well.  His DOJ reversed course to argue that Ohio’s purge of voter rolls complied with the National Voter Registration Act. That position is so outlandish that no career attorneys in DOJ’s Civil Rights Division were willing to sign onto the brief.  He's also managed to have his DOJ mount arguments in defense of policies that have very serious legal defects, such as the sanctuary city order, the President's multiple entry bans (including the first one that contained an explicit religious preference), the President's business arrangements that raise the appearance of and potential for corruption, and many others.  

The six-month delay belies the claim that DACA is illegal.  Trump and Sessions have continued DACA for the first eight months of the administration.  And if the reporting from the weekend is to be believed, they will continue it for an additional six months after Trump’s announcement.  If DACA is so illegal that it can’t be defended in court (or even allowed to continue), why did they carry out the program for a year? Why carry out the program after announcing they’ve concluded that it’s illegal?  There might be policy or humanitarian reasons to do so. But those same policy and humanitarian reasons weigh in favor of keeping DACA, rather than ending it, even if the administration seriously harbors some doubts about the program’s legality.

***

Trump’s reasons for rescinding DACA don’t hold up. And they shouldn’t distract from the real travesty with rescinding DACA—the consequences it will have for the DREAM-ers. The DREAM-ers were given a taste of a middle class life, the opportunity to work in jobs and attend universities that were previously unattainable for them given their status and lack of work authorization.  Now those opportunities are going to be yanked out from under them.  And that’s on top of the added fear of deportation, which may be compounded now that they’ve turned over information about themselves to the government (including their address, the names of their family members, who may also be undocumented, and their work information, among other things).  They’ve also now admitted that they’re undocumented. Rescinding DACA is cruel, and the administration’s weak justifications for doing so shouldn’t distract from the administration's utter lack of humanity and empathy.

You can follow Leah on Twitter @LeahLitman.


Mueller Report Counterspin: We Still Don't Know Why Trump Denied Russian Interference

4/19/19  //  In-Depth Analysis

The Mueller Report could but won't be used as the basis for impeachment. Meanwhile, it leaves two fundamental questions unanswered.

Michael C. Dorf

Cornell Law School

Versus Trump: Dems vs. The IRS?

4/18/19  //  Commentary

This week on Versus Trump, Jason, Charlie, and Easha discuss the brewing dispute over Trump's tax returns. Listen now!

Beyond Resistance: A Guide for Local Governments to Protect Their Communities

4/18/19  //  Latest Developments

By Jill E. Habig and Joanna Pearl: Here's how cities and states can protect their residents' rights

Take Care