Trump, Obama torpedo ‘dreamer’ arguments
Lawyers looking forward to battles over President Trump’s decision to mothball President Obama’s Deferred Action for Childhood Arrivals (DACA) program will find the legal ground complicated by the statements of both presidents.
At the core of the legal fights is the doctrine of the separation of powers. Tuesday, the Trump administration staked out the position that DACA was constitutionally flawed because it circumvented the proper role of Congress. Attorney General Jeff Sessions laid out that principled position in favor of the legislative process mandated by the Framers. Congress should write the immigration laws.
Yet no sooner had the attorney general explained that position than the president tweeted, “Congress now has six months to legalize DACA (something the Obama administration was unable to do). If they can’t, I will revisit this issue!”
The tweet was widely interpreted to mean that Trump is prepared to do what Sessions just said was unconstitutional: Take executive action to protect DACA immigrants. If so, the tweet undermines the position of the administration in court and takes away the constitutional high ground claimed by Sessions. In the pending litigation, plaintiffs can now argue that DACA is not really dead, and that the president was not serious about leaving it entirely to Congress.
However, there is a twist this time. The litigation by 15 states and the District of Columbia announced Wednesday may feature similar contradictory statements from Obama and his administration.
While the exact nature of the legal challenge isn’t clear, some expect challengers to bring a case under the Administrative Procedure Act claiming Trump’s action is a “substantive” rule requiring a notice-and-comment period. Putting aside that the rule does not require such a process for “interpretative rules, general statements of policy, or rules of agency organization, procedure, or practice,” the states targeting Trump never went to court to challenge DACA itself on the same grounds. DACA notably did not go through notice or comment.
Some challengers are suggesting that DACA may be permanent because of the “estoppel doctrine” — arguing that “dreamers” relied on the government promise that they could remain.
However, in issuing the DACA order, Obama expressly stated that it is “not a permanent fix. This is a temporary stopgap measure.” Obama also said he could not change federal immigration law through his executive orders.
Moreover, challengers are suggesting that Obama had inherent presidential authority to bar the enforcement of federal law, but that Trump cannot use the same authority to enforce it.
The deepening uncertainty over presidential statements and the status of DACA only reinforces the wisdom of the Framers in forcing such major decisions into the legislative process. What we need is a new law, not presidential proclamations.