//  9/4/17  //  Commentary

Cross-posted at Dorf on Law

It appears that President Trump will likely announce that in six months he will cancel Deferred Action for Childhood Arrivals (DACA), the Obama-era program that enables people who came to the US without proper documentation as children to remain in the country to pursue an education and/or  work. Ending DACA would be cruel and would betray Trump's February assurance that he would "show great heart" to the hundreds of thousands of "Dreamers" who have relied on DACA. It would also display an incoherent approach to executive power, as can be seen by juxtaposing Trump's apparent plan to end DACA with his administration's SCOTUS brief in the Travel Ban litigation.

In the Travel Ban brief, the Trump administration argues for maximum discretion in construing the federal statute that authorizes the president to "suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate" whenever he "finds that" their "entry . . . would be detrimental to the interests of the United States." Various courts have found that Trump's executive order was unconstitutional religious discrimination, but there is a threshold question whether it was statutorily authorized. The Ninth Circuit said no, because Trump did not provide a sufficient basis for its determination that the people whose entry the challenged Executive Order bars pose any threat or are otherwise "detrimental" to American interests. Findings of difficult conditions in the countries listed in the ban, the Ninth Circuit said, have no real bearing on the nationality-based ban. In its SCOTUS brief, the administration vigorously contests the Ninth Circuit reading of the statute, essentially arguing that the president's say-so is enough to satisfy the statutory requirement of a finding.

Whether that argument prevails in the Supreme Court remains to be seen. Perhaps it will. Perhaps it won't. Or perhaps the justices will find that the case is moot. Or perhaps they'll find that the Travel Ban falls within the president's delegated authority but that he exercised that authority unconstitutionally. For now, I simply want to make the point that the administration's position on the statutory question in the Travel Ban case is more or less what one would expect from most administrations: presidents typically assert that acts of Congress grant them broad discretion.

Contrast that position with the view that Trump would be taking by canceling DACA after a six-month delay. The delay would enable Congress to enact DACA-like protections for Dreamers, which, presumably, Trump would sign. Why? If Trump disagrees with the policy of DACA, why kick it over to Congress? Why not just end DACA immediately?

One answer might be that Trump dislikes DACA on policy grounds but wants to make a deal with Congress: He would sign DACA-like legislation in exchange for funding of his border wall. Maybe, but that doesn't quite explain why Trump would make this particular deal rather than some other deal that includes border wall funding. If Trump really dislikes the DACA policy, one would think that he would want to use something else as leverage to get border wall funding.

Meanwhile, many people on the right who don't disagree with DACA as a policy matter have nonetheless opposed DACA on separation-of-powers grounds. The president, they say, has a duty to enforce the immigration laws and DACA doesn't satisfy that duty. Is this Trump's position?

Possibly, but if so, that is a very peculiar position for his administration to take. It amounts to saying that the immigration laws constrain his prosecutorial discretion to withhold deportation, even as the administration says that the law at issue in the Travel Ban case maximizes his discretion.

That's not necessarily a contradiction, to be sure. It's possible for one statute to confer broad presidential discretion and another statute to constrain presidential discretion. But 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.

There is a much simpler explanation: Notwithstanding the occasional claim that President Trump wants to show "heart," his administration will invoke whatever views of statutes and executive power maximize cruelty towards the foreign nationals he and his supporters most despise.


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