Updated at 2:30 p.m. EST on Wednesday, November 13, 2019
One distinguishing feature of the Trump administration is its ambitious, radical policy agenda.
A second is how absolutely incompetent it has been at putting that agenda into law.
Consider the “DACA cases,” which the Court will hear tomorrow.
These cases raise important human issues. But legally, they turn on an abstract question: Was Attorney General Jeff Sessions’s decision to “rescind” the Obama administration’s Deferred Action for Childhood Arrivals (or “Dreamers”) program legal?
This is an odd posture for this case to end up in. It frames the concrete issue—the lives of nearly a million young people who have grown up in this country—in the airless abstract language of administrative law and its dreaded mother document, the Administrative Procedure Act.
Since the DACA program was announced in 2012, conservatives have agreed on one thing: DACA is unlawful, a violation of the Immigration and Nationality Act (INA), an unconstitutional executive overreach that needed to be abolished as soon as possible. Getting rid of it was a top priority the day Sessions took office as attorney general. Nonetheless, he seems to have had no real plan of how to abolish it; when he did so, his approach was so hasty and sloppy that the courts blocked his order immediately.
This Three Stooges–style ineptitude is like the other FUBARs the administration has committed. Consider the “travel ban,” which was rolled out with no warning one week after Trump’s inauguration. That ban read as if it had been dictated to a bunch of teenagers by a Ouija board; lower courts blocked it. The same problems afflicted the second “ban,” announced on March 6, also blocked. In September, the administration finally produced a version that made it through Supreme Court review. Though I was disappointed in the Court’s decision, the administration went into the battle with a lot of law on its side; it nearly squandered that advantage.
The same sloppiness cost the administration a probable win in last spring’s census case. Secretary of Commerce Wilbur Ross wanted a question on the census form asking for citizenship status for each member of every American household. Critics said doing so would make the count less accurate, thus violating the Census Act. Ross and his crew threw together an “administrative record” so skimpy and dishonest that Chief Justice John Roberts couldn’t stomach it.
In area after area, as The Washington Post’s Fred Barbash documented succinctly a few months ago, bad lawyering and contempt for the rule of law have resulted in Trump initiatives being derailed in the lower courts. The judges in these cases have usually not ruled that Trump’s policies are unconstitutional. Instead, the flaws that show up over and over arise from incompetent reading of federal statutes and willful failure to follow prescribed procedures.
Administrative law is hard, to be sure; but the executive branch employs good lawyers—really, really smart and careful lawyers who love it. They can provide political appointees with good advice on how to achieve their goals. But over and over, the administration has cut these good lawyers out of the loop, and paid bitterly for it in court.
That brings us to the three cases to be argued tomorrow under the combined title Department of Homeland Security v. Regents of the University of California. The administration’s “rescission” of DACA has been blocked by three lower federal courts—leaving the program in place more than two years after Sessions tried to end it.
None of these courts has held that the government is required to maintain a DACA program. Instead, they have all held that Sessions didn’t bother to do what was needed to end it. Under principles of administrative law, that made getting rid of the program “arbitrary and capricious”—a formula that is kryptonite for administrative regulations.
To understand why, let’s understand what DACA is and isn’t. In 2012, then–Secretary of Homeland Security Janet Napolitano announced that DHS was exercising its “prosecutorial discretion” to “defer” immigration enforcement against a specific class of undocumented noncitizens living in the United States. These were the “Dreamers”—undocumented people then under the age of 31 who had been brought to the U.S. as children by their parents and who had since that time (1) avoided conviction of a serious crime and (2) were in school, had graduated from school, or had served honorably in the military. The Napolitano memo said that the department would spend its limited resources trying to deport other “removable” noncitizens—“criminal aliens,” for example. With more than 11 million undocumented people inside the U.S., Congress had appropriated enough funds to deport roughly 400,000 a year. So the agency was “deferring action” on the “Dreamer” class.
“Deferred action” is a policy choice that immigration authorities have applied to different groups for more than three decades. Once it is established, those covered by it can come out of the shadows and sign up with DHS; they would be treated like other noncitizens who have been granted “deferred action.” Government regulations allow them to obtain Social Security numbers and work authorization. Deferred-action status is and always was temporary—it needs renewal every two years; the department made clear at the outset that no “Dreamer” had a right to continue the “deferred action” status after two years. Importantly, the program does not provide a “path to citizenship,” which would require an act of Congress.
Napolitano’s memo set off furious controversy. Though “deferred action” was an established mechanism, it had never been applied to such a large class of undocumented people. Supporters said that the executive branch was simply doing what it had long done—setting priorities for enforcement—in ways that the INA specifically permitted. Critics saw an unlawful end run around Congress, which had failed to enact the proposed “DREAM Act” to protect “Dreamers.”
Then, on November 20, 2014, the Obama administration announced another new program, called “Deferred Action for Parents of Americans,” or DAPA. “Deferred action” would now extend to many undocumented parents whose children had been born in the U.S. On February 16, 2015, a federal district court in Texas, at the request of a group of states, blocked DAPA before it went into effect.
The DAPA program headed to the Supreme Court, then one justice short. After hearing arguments, the justices tied, 4–4. The Fifth Circuit’s decision was affirmed without opinion. DAPA was dead.
But that case was only about DAPA; nothing had happened to DACA. That remained in effect and, indeed, attracted political support from across the spectrum.
Then, on September 5, 2017, Sessions issued a memo calling a halt to DACA. Business executives, Republican and Democratic lawmakers, and immigrant activists all decried the perverse cruelty of penalizing individuals who had never made a decision to break American law and had lived blameless lives since arriving here. Trump himself seemed to repudiate Sessions, tweeting a mere two days after the attorney general’s letter, “Does anybody really want to throw out good, educated and accomplished young people who have jobs, some serving in the military? Really!.....” Trump delayed the change for six months to allow Congress to legislate on the issue.
This, it seems, was a ploy. Trump tried to trade continuation of DACA for funding for his border wall. That didn’t happen, though, and the six-month grace period passed.
DACA was dead. Or was it? A large number of groups, including immigrants’-rights activists, universities with undocumented faculty and students, and state governments, rushed to court and obtained injunctions barring the administration from ending DACA—at least from ending it the way Sessions did it.
At this point, the administrative-law doctrines at play may begin to seem like one of those M. C. Escher engravings in which staircases lead upward and downward in an endless loop. The flaws the courts found with the rescission of DACA sound very much like the flaws that DACA’s critics claimed were wrong with the creation of DACA.
The first was that Sessions had sprung his decision on the world without warning. One principle of administrative law, codified in the Administrative Procedure Act, is that “legislative rules” are to be announced in advance, giving the public a chance to comment before a final rule issues. Rescinding DACA, judges held, was making a “legislative rule.” DHS had not used notice and comment to announce DACA. But rescinding a program may be different from announcing one, because of what lawyers call “reliance interests.” At this point, the human story of DACA briefly enters the case.
The day before DACA was announced, no one had a right to expect it, and no one had made use of it. But after DACA went into operation, nearly 800,000 people were approved for it. As of this past summer, there were about 660,000 active DACA recipients.* Relying on the government’s description of the program, they risked eventual deportation by revealing their personal information to DHS; in exchange, they received “work authorization,” which meant they could apply for driver’s licenses, attend school, and hold jobs like other residents. Rescinding the program without warning would jerk the rug out from under them. Their “reliance” on the program might make the “notice and comment” issue different.
The second flaw was Sessions’s claim that DACA was unlawful. Before DACA was announced, the Justice Department’s Office of Legal Counsel (OLC) produced a 33-page legal memo. That memo concluded that the program was a permissible use of the broad discretion that the INA gives to DHS. I tend to agree; I also know smart people who disagree. But nobody seriously claims that OLC didn’t grapple in good faith with the legal issues.
Sessions, however, did not. In contrast to the OLC memo, Sessions’s letter reads like the homework of a college freshman who didn’t do the required reading. It said that DACA was instituted “without proper statutory authority,” and constituted “an unconstitutional exercise of authority by the Executive Branch.” There was no analysis of the statute—exactly which of the INA’s 150-plus sections did DACA violate? For that matter, what part of the Constitution did it violate? Sessions also noted that the Fifth Circuit had ruled against DAPA; “the DACA policy has the same legal and constitutional defects,” he said. This claim was demonstrably false; the Fifth Circuit’s DAPA decision focused on a part of the statute that doesn’t apply to DACA.
It almost seemed as if Sessions hadn’t bothered to read either the OLC memo, the INA, or the Fifth Circuit decision. His explanation was, in fact, pretty much the same as no explanation at all. Issuing a new rule without explaining why is one common legal definition of “arbitrary and capricious.”
Three injunctions went into place, and the government ran to the Supreme Court for expedited review. That review will take place Tuesday.
Before the Supreme Court, the government is arguing that the Court has no power to review the decision, because it is one of a narrow class of policy decisions that are, in the words of the Administrative Procedure Act, “committed to agency discretion by law.”
The pro-DACA parties respond that the decision that was actually made had, in its own terms, nothing to do with “discretion” or “policy”; Sessions said that, under a new legal analysis, DACA is illegal—in other words, that the government is required to rescind it. That’s not an exercise of discretion at all; the government’s claim is self-canceling, indeed Escheresque. “To say that an agency’s determination that it lacks discretion is committed to the agency’s discretion,” the University of California argues in its brief, “verges on the nonsensical.” If the law is the reason for the change, they say, then courts must be able to review the agency’s reading of the law.
And the law, say the pro-DACA parties, is on their side. The program, they argue, is simply the oft-used “deferred action” applied to a different class; Sessions’s argument about the law, they say, is simply wrong.
As we watch these abstractions pinwheel, keep in mind that the case is the gravest of matters for nearly a million people. An adverse decision will condemn them, at best, to lives in a shadow world; at worst, of course, it may mean deportation for many of them, an end to their lives as they know them.
* This article originally misstated the estimated number of DACA recipients.