DACA Whiplash

September 7th, 2017

On Tuesday, Attorney General Jeff Sessions announced that Deferred Action for Childhood Arrivals, or DACA, was an “unconstitutional exercise of authority” and would be rescinded. Less than nine hours later, President Donald Trump tweeted a rejoinder: If Congress does not “legalize DACA” in six months, “I will revisit this issue!” To date, the president’s digital diarrhea, such as his attacks on the judiciary, have made it even more difficult for the Justice Department to defend his policies in court. But this latest constitutional whiplash undermines that defense on an even more profound level. If the attorney general has determined that the policy is illegal, and the secretary of homeland security has adopted that conclusion, in what conceivable scenario could the president “revisit this issue” in six months?

This confounding and self-defeating tweet illustrates at once how Trump defies all norms. First, it is the president’s duty to take care that the laws are faithfully executed, not the duty of his subordinates. Yet here, by all accounts, the attorney general is making these crucial determinations. The president’s ambivalence borders on defiance. Second, in the event that Trump does in fact reignite the policy in six months, finding that it is has become constitutional, Sessions would have to resign. But critically, during that span, the Justice Department will have argued in courts throughout the United States that the reason for the withdrawing of DACA was because it is unconstitutional. If the policy is resurrected, the credibility of the government’s litigating position will be devastated.

Third, this episode harks back to the firing of FBI Director James Comey. Recall that Deputy Attorney General Rod Rosenstein released a memorandum explaining that Comey was being terminated due to his conduct concerning Hillary Clinton’s email server. Shortly thereafter, Trump casually admitted that the real reason for the firing was Comey’s Russia investigation. At once, Trump burned Rosenstein’s credibility and established that the proffered reason was pretextual. Here too, Trump’s tweet diminishes the credibility of the claim that the reason for DACA’s rescission is its unconstitutionality.Instead, it bolsters the counterargument that this policy is merely part of Trump’s crackdown on immigration. Within the White House, there are likely mixed motives here — some are motivated by the constitutional concern, others by policy concerns. The unitary executive is supposed to unify these concerns, and articulate a single message as the sole organ of government. Trump can’t or won’t do that, and instead capriciously undercut his own embattled attorney general.

There is also whiplash within the Office of Legal Counsel (OLC), as Jack Goldsmith, a professor of law Harvard, tweeted. In 2014, the office released an opinion explaining the constitutionality of the newly announced Deferred Action for Parents of Americans, or DAPA, and included in that document a cryptic footnote about the legality of DACA. (I do not find that opinion persuasive, in large part because it offered an inaccurate account of the structure of immigration law and how past presidents had exercised deferred action.) That opinion itself was a form of whiplash, because President Barack Obama had repeatedly stated that he lacked the authority to grant relief to the Dreamers (undocumented immigrants who were brought to the United States as children). But after the 44th unitary executive made his decision, the administration fell in line.

Despite Sessions’s conclusion that the policy is “unconstitutional exercise of authority,” there was no announcement that the OLC opinion would be withdrawn. Based on my understanding, OLC is loath to ever rescind opinions. To take a glaring example, OLC’s 2012 opinion green-lighting appointments made during pro forma sessions is still on the Justice Department website, even though the Supreme Court unanimously ruledthat such appointments were unconstitutional. As Trevor Morrison, dean of New York University’s School of Law, explained in an article about stare decisis within OLC, rather than withdrawing opinions, an “editor’s note” can be added to the bound volume, noting that “intervening Supreme Court decisions and ‘certain differences in approach to the issues’ discussed herein may render portions of this memorandum inadequate.” So there is nothing surprising that the opinion was not withdrawn right away. Moreover, because this issue is going to be litigated imminently, it may not be in OLC’s interests to provide opinions that may run afoul of Department of Justice’s litigating positions. Additionally, that the government is keeping the policy in effect for another six months would make it very hard for OLC to say that the policy was illegal ab ibinitio. When the 2014 opinion is ultimately published in a bound volume, it may note that the Fifth Circuit’s decision casts doubt on the validity of the opinion. But at a minimum, Sessions should indicate whether the agency is still adhering to the OLC opinion.

The whiplash is not limited to the executive branch.Congress, which has had every opportunity to enact the Dream Act, or similar legislation to provide a permanent legal status for the Dreamers, has done nothing for five years. (I have long argued that DAPA is unconstitutional, in large part, based on DACA’s unconstitutionality, but support the enactment of the Dream Act.) Yet, those bills have gone nowhere. Because Trump has suddenly pulled the rug — or maybe pulled the rug for six months, perhaps to reinstall shag carpeting later — there is some movement on Capitol Hill to address this problem through bicameralism and presentment. Will it pass now? Who knows. What is certain is that the use of executive action in the past made that process less likely, and not more likely. One of the most harmful consequences of Obama’s pen-and-phone governance was that it allowed legislators to skirt difficult votes. Can’t muster the votes for the Dream Act? Issue DACA. The Gang of Eight bill failed? Sign DAPA. Congress won’t provide funding for the cost-sharing reduction subsidies under the Affordable Care Act? Pay it anyway. And so on. Now, Congress has an ultimatum — protect the Dreamers, or they will be subject to deportation.

Tragically, caught amid this whiplash are the 800,000 DACA beneficiaries whose fate hangs in the whims of the president’s latest tweet. To that end, perhaps the most inexplicable aspect of this entire project is the manner in which this policy is being wound down. Even after Trump took office, his administration continued to accept DACA applications, urging the Dreamers to come out of the proverbial shadows. Now, these very people who identified themselves to this government will soon lose their lawful presence. The time to rescind this policy was on the first day of the administration, not seven months later, after Texas’s ultimatum. This decision is yet another illustration of what Benjamin Wittes referred to as “malevolence tempered by incompetence.”

Cross-Posted at Foreign Policy