New Essay in National Review on DACA Decision

January 10th, 2018

National Review has published my latest essay (the title not of my choosing) on Judge Alsup’s ruling in the DACA case.

Here is an excerpt:

The Obama administration, by its best lights, determined that DAPA and DACA were lawful. The Trump administration reached the opposite conclusion, and moved to rescind both polices. In a normal world, that decision would have been the end of the matter. But in the Bizarro World we find ourselves in, a federal judge has now informed the Trump administration that it must keep DACA in effect. Judge Alsup based his decision on the fact that the executive branch offered only a “pithy conclusion that the agency had exceeded its statutory and constitutional authority,” which was a “mistake of law.” Specifically, the court ruled that the Trump administration’s decision was “arbitrary, capricious, an abuse of discretion, or not otherwise in accordance with law.” Reading this serious charge, one would suspect that President Trump scrawled his legal defense on the back of a cocktail napkin with a sharpie. Hardly.

In October 2017, Attorney General Jeff Sessions determined that DACA was implemented “without proper statutory authority” and that it was an “open-ended circumvention of immigration laws.” Not only was this policy a violation of the Immigration and Nationality Act, but it was “an unconstitutional exercise of authority by the Executive Branch.” He reaffirmed his “duty to defend the Constitution and to faithfully execute the laws passed by Congress.” Sessions added that the “proper enforcement of our immigration laws is, as President Trump consistently said, critical to the national interest and the restoration of the rule of law in our country.” Sessions’s analysis was premised on a decision from the Fifth Circuit Court of Appeals, which two years earlier had ruled that DAPA was unlawful. As I noted on NRO in May 2015, in halting DAPA, the Fifth Circuit assumed the program would be implemented in a way similar to how DACA had been: as a blanket measure akin to legislation, not a case-by-case exercise of prosecutorial discretion. This opinion strongly suggested that DACA, which was not being challenged, was illegal as well. As even Judge Alsup was forced to concede, “at least some . . . [of the Fifth Circuit’s] reasons for holding DAPA illegal would apply to DACA.”

Indeed, DACA’s legality was on an even shakier footing than DAPA’s, because Dreamers did not need to have any familial relationship with an American citizen to receive lawful presence. Unlike DAPA, DACA could not be justified as a family-reunification measure, but could only be defended on what the Obama administration described as “humanitarian concerns.” (See pages 116–119 of this article.) This is no doubt a legitimate policy argument, but in no sense is it a binding command to the Trump administration. The Fifth Circuit’s ruling was appealed to the Supreme Court, where the justices split 4–4 following Justice Scalia’s passing. Had Justice Scalia been on the bench, I am confident Texas’s challenge would have prevailed.

Again, in a normal world, it would be entirely rational for the attorney general to wind down DACA, which was the model for DAPA, based on a ruling against DAPA by a federal court of appeals, combined with signals that the Supreme Court would agree. (I would be willing to bet that Justice Gorsuch would cast the fifth vote to invalidate the policy.) Not so for Judge Alsup, who insists that “the DAPA litigation was not a death knell for DACA.” For example, he writes, “there is a difference between 4.3 million and 689,000.” That is, because fewer people received DACA than DAPA, the former policy is on a stronger legal footing. Yes, the two numbers are different. But so what? Breaking the law with nearly 700,000 aliens is still illegal.

Judge Alsup next argues that DAPA and DACA are different because citizen children can petition for citizenship for their parents, whereas the Dreamers had no pathway to lawful presence. That argument actually undermines DACA’s legality. Congress has viewed DAPA beneficiaries more favorably as a class, because they at least had the prospect of becoming citizens through their children down the road. Not so for the Dreamers, who had no path to citizenship. Finally, Judge Alsup insists that the Trump administration can cure any problems with DACA by “simply insisting on exercise of discretion.” But the crux of DACA is that there is no meaningful discretion. It operates only as a rubber stamp. And it is not for federal judges to instruct the president how to exercise his discretion.

In any event, these contrived quibbles are irrelevant. President Trump does not need to persuade every single judge about DACA’s illegality before halting it. Judge Alsup, who continues a disturbing recent trend, failed to afford the deference due to a coordinate branch of government in making legal determinations. Trump has the electoral mandate to reverse the decisions of his predecessor and the constitutional obligation to assess the constitutionality of his actions. The judgment here, premised on a decision of a federal court of appeals, provides more than enough basis to justify the recision of DACA. Moreover, the president’s determination that an exercise of his own power was unconstitutional warrants the court’s solicitude. That is a decision for the president to make in consultation with his advisers, and one that should not be disturbed lightly by a federal court. Judge Alsup completely ignored the constitutional issue, focusing exclusively on the statutory question. Indeed, I am unable to think of any decision where a court has ordered a president to exercise discretionary authority he has deemed unconstitutional.