In putting a public face to DAPA, however, the Obama administration has abetted a widespread misapprehension that this fight is an epic battle about the nature of the presidency. Not surprisingly, the president’s political opponents often echo this misconception because it fits the narrative of Obama as a monarchical wannabe.
To be sure, Johnson’s program followed intense collaboration involving the White House, DHS, and the Justice Department. In Power Wars, his account of the Obama presidency, the New York Times reporter Charlie Savage explains how the White House vetted a variety of policy options regarding deferred action for undocumented immigrants. The White House was directly involved in DAPA as a policy matter, and even the legal analysis published by the Justice Department—which rejected one of DHS’s major proposals as impermissible—was developed in consultation with White House counsel. What this points to, however, is only Obama’s political accountability for DAPA, not the secretary’s underlying legal authority. For political leadership, a president is accountable in the polls, but not the courts.
When Obama says he was “left with little choice but to take steps within my existing authority to make our immigration system smarter, fairer, and more just,” he is thus not promoting transparency about legal responsibility. He is intensifying confusion. As president, he no doubt has constitutional authority to consult with the secretary of homeland security, help shape DHS’s agenda, and inform the secretary of his strongly preferred policy outcomes. He could not have forced Johnson to promulgate a program, however; in the face of impasse, Obama would be able only to fire this secretary and try to appoint another. When Obama refers to “his” powers or “my” actions, he mainly insures that all the opposition to the program, both legal and political, will get focused with laser-like intensity on him, rather than Johnson.
Conservative political vitriol against the president may have had some impact on the judiciary’s involvement with DAPA prior to last week’s Supreme Court vote. That tie did no more than affirm the United States district-court injunction against DAPA issued by Judge Andrew Hanen on the ground that DHS should have followed notice-and-comment processes in promulgating DAPA. On the way to issuing that order, however, Hanen offered a 123-page legal analysis of a variety of issues, which has, to put it charitably, some unevenness in analytic clarity and persuasiveness. In faulting Johnson for bypassing notice-and-comment, Hanen placed considerable emphasis on Obama’s informal comments about DAPA, giving them false legal significance and interpreting them as part of a lawmaking “initiative.”
By a two-to-one vote, a Fifth Circuit panel upheld Hanen’s injunction, but staked out an even broader rationale. The judges thought it unlikely that, with or without public comment, Johnson had statutory authority to implement DAPA at all. In agreeing to review the Fifth Circuit’s decision, the Supreme Court—still with a cohort of nine Justices, at that point—requested that parties address whether DAPA violated the president’s duty to faithfully execute the law. This was doubly bizarre: Neither court below had addressed this question, and, in any event, the Supreme Court determined over 20 years ago that even presidential errors in interpreting the scope of statutory authority are not constitutional claims. Administrative error does not amount to constitutional crisis.