Wednesday, July 29, 2020
Guest Post: The Supreme Court’s DACA Decision Did Not Authorize an Authoritarian Power Grab by Carrie Rosenbaum and Geoffrey Hoffman
The administration appears to be seeking legal cover for sending militarized Customs and Border Protection agents to Democratic leaning cities, where local governments say they are not welcome, and not needed. In addition, the president seems to be inquiring about how far he can push the power of the president. John Yoo reportedly told the White House that the Supreme Court’s recent DACA decision gave the president the authority to essentially to rule as an authoritarian and make law on health care, tax policy, criminal justice and inner-city policy. Yoo’s advice is wrong, for 6 reasons. Nothing in the Constitution or federal law authorizes the president to subvert Congress and single-handedly rule the country.
The Supreme Court’s June 18, 2020 decision invalidated Trump’s attempted rescission of Deferred Action for Childhood Arrivals (DACA) on a narrow, procedural ground, as we wrote about on June 17, 2020. The Court found that the administration had not followed proper federal law, specifically, Administrative Procedure Act (APA) rules in rescinding the program. The effect of the decision as a lower district court recently held, was to allow the DACA program to be reinstated as it existed pre-September 2017.
The Supreme Court’s ruling does not do what Yoo suggests it did for the following reasons:
The Supreme Court’s decision does not purport to address the "soundness" of the underlying DACA program. In other words, the Supreme Court did not find that the Obama Administration’s DACA policy was either an authorized use of executive authority under Immigration and Nationality Act (INA) or otherwise. Nor did it resolve any Constitutional issues as was made apparent by Chief Justice’s rejection of plaintiffs’ equal protection claim, over the staunch objections of Justice Sotomayor.
The Supreme Court’s DACA ruling solely concerned APA procedural compliance issues concerning the Trump administration’s DACA rescission. The decision did not address nor authorize the president to rescind any other law or policy in any other context. It was not a vast authorization of executive authority, as alleged by Yoo.
A president’s use of "executive orders" was not the subject of the DACA decision at all because former President Obama did not use an executive order to create DACA in the first place. The DACA decision did not require an executive order, but it was also incredibly narrow and specific to immigration law prosecutorial discretion. DACA was a policy change determining the amount and type of federal immigration law prosecutorial discretion the administration would exercise in deciding which groups of undocumented immigrants to focus limited federal immigration enforcement money on targeting for removal.
To date, the executive orders which have been upheld by courts have related to external policies within the “exceptional” realm of the federal government to make law in the context of immigration law, and specifically with respect to exclusion and deportation, or preventing people from entering the United States, and to a lesser extent, deporting people. The Travel ban, restricting entry to the U.S. by persons of specific Muslim majority countries was recently upheld on the basis of INA sec. 212(f), though scholars have argued that the Court’s decision was contrary to law.
The plenary power doctrine is the unwritten law or principle, not within the Constitution, nor federal statute, that the Court has invoked over the years when seeking to exclude particular groups en masse, like Chinese immigrants, or to intern or imprison groups, like Japanese internment. That authority has been expressly limited to immigration law and there is no basis to expand it beyond immigration law. Even then, it has been justified on the basis of national security and sovereignty, but it has also been acknowledged that such justifications have been a shield for racism and otherwise lacked a genuine national security concern or threat.
An executive order may not conflict with a pre-existing federal statute and is subject to Constitutional constraints. What the Trump administration has allegedly been advised may be authorized pursuant to executive authority would almost certainly be invalidated as in conflict with existing federal law, or Constitutional requirements.
Finally, the use of executive orders as an end-run around states' rights and local control would be seen for what it is, usurpation under 10th Amendment. The 10th Amendment gives the states and localities all powers not specified as within the authority of the federal government, including police powers.
Ultimately, the Trump administration may be intent on subverting the Constitution and federal law and doing whatever the president likes, knowing full well that the courts may eventually deem his acts unlawful. In the meantime, it is important to recognize that the Supreme Court’s DACA decision, and the Trump v. Hawaii decision, did not give the president free reign to rule domestically as he sees fit, usurping the role of Congress, the states and federal law. While some may argue he has more power, for now, in the realm of immigration law and foreign matters than he did before the Trump v. Hawaii travel ban case, no law, including INA 212(f), authorizes him to subvert the letter and spirit of the supreme law of the land, the U.S. Constitution. As long as we are a Democratic republic, it does not countenance an authoritarian power grab of the kind suggested by Yoo.
*Geoffrey Hoffman is a Clinical Professor of Law at the University of Houston Law Center and Carrie Rosenbaum is a Lecturer & Visiting Scholar, University of California-Berkeley (both individual capacity; institutions listed for identification only).