In a previous post, I suggested that President Trump’s suspension of DAPA should be accompanied by OLC’s repudiation of the November 2014 opinion affirming the legality of DAPA. In response, commentary on Twitter suggested that this represents an attacks the independence of OLC. I have several responses to this point.
First, OLC has not been independent for some time. As has been documented at some length, the Obama Administration consistently disregarded OLC when it provided the wrong answer, with respect to the District of Columbia’s congressional voting rights and the “hostilities” in Libya. It was also kept in the dark with respect to the Bin Laden assassination. This office has been repeatedly demeaned in recent years.
Second, the November 2014 DAPA Opinion was signed by a political appointee, and did not represent the continuation of some sort of longstanding office policy. Further, as revealed by Politico, President Obama personally requested “60 iterations” of the policy, because earlier versions did not go “far enough.” To OLC’s credit, it imposed a limit–deferred action could not be granted to the parents of the DACA beneficiaries. But, beyond that, it expanded the executive’s power in an unprecedented manner. By its own terms, the Opinion admits that DAPA was quite novel, and represented a departure from previous deferred action policies in terms of its size and scope. (The citation to the 1990 Family Fairness policy bordered on disingenuous, because it was premised on a form of releif–extended voluntary departure–that has since been restricted by statute). Rescinding this Opinion would not affect any sort of long-standing executive-branch policy. At a minimum, the discussion of “lawful presence” should be revoked. DAPA without the grant of “lawful presence” would present a very, very different policy.
Third, the November 2014 DAPA Opinion is seriously flawed. For reasons I discuss in this article, I think the Opinion omits important discussions about the constraints immigration law poses on the executive, and overstates the sort of discretion past presidents have exercised. I highly doubt the future OLC will share such a cramped view of Congress’s power over immigration, and it would be entirely appropriate to conform OLC’s opinions with longstanding understandings of the plenary power doctrine.
Fourth, rescinding the OLC Opinion would actually put the cancellation of DAPA on stronger footings. I am generally skeptical of mere Presidential Reversals, where one administration reverses a policy of a previous administration because they see the world differently. If a statute has a fixed meaning, Presidents should not be able to vary that meaning with the times. (This feeds into my general disfavor of Chevron). But if the next administration agues–with serious validity–that the old interpretation was unlawful, this puts the reversal on a much stronger footing. By way of example, OLC Head Jack Goldsmith did not simply withdraw the Torture Memos because he disagreed with them, but because he thought they were illegal. That is why I suggested that any cancellation of DAPA be accompanied by an explanation why: namely that the policy is illegal.
I explained in an earlier post:
On January 20, the President should direct his new Homeland Security Secretary to withdraw Secretary Johnson’s 11/20/14 DAPA memorandum. Simultaneously, the Office of Legal Counsel should formally withdraw its 11/20/14 DAPA opinion. In doing so, OLC should explain that it has now determined that the 2014 opinion was wrong, and that DAPA is both procedurally and substantively unreasonable. It would be sufficient to cite Judge Smith’s opinion for the 5th Circuit. (Judge Smith’s opinion did not address the Take Care clause–something OLC probably does not want to weigh in on). This affirmative repudiation of the basis of the policy prevents future executive branches–in theory at least–from relying on this past practice. As we learned in Noel Canning, the Court is extremely deferential to the internal practices of the executive branch–what Justice Scalia called in his concurring opinion an “adverse possession” theory of executive power. The executive should not be able to suspend the law under the bogus guise of prosecutorial discretion. And lest DAPA supporters think this is a bad idea, I would hope such a clearly-stated policy in the early days of a Trump administration binds President Trump himself in the future.
There are a lot of benefits for pursuing this path, and it would in no way damage the already-tattered independence of OLC.