Executive Power

Understanding Sessions’s Justification to Rescind DACA

By Josh Blackman
Tuesday, January 16, 2018, 8:00 AM

Attorney General Jeff Sessions, in a to Acting Homeland Security Secretary Elaine Duke, provided several bases to justify the rescission of Deferred Action for Childhood Arrivals (DACA). Judge William H. Alsup’s focused exclusively on the statutory claim, and ignored the broader constitutional arguments. These constitutional claims provide a separate, and far more significant ground to uphold the administration’s decision.

The court’s failure to closely parse Sessions’s terse letter led to a ruling that forces the administration to continue implementing a discretionary policy announced by his predecessor, even though President Donald Trump has determined that the policy is unlawful. Looking beyond the specifics of DACA, such a ruling would disable future presidents of all stripes from reversing discretionary judgments of their predecessors. What follows is a line-by-line parsing of the attorney general’s letter. It is, admittedly, charitable; several of Sessions’s choices are somewhat confounding. But this sort of reading is consistent with how courts would traditionally view official communications from a coordinate branch of government: with deference, not hostility.

DACA was effectuated by the previous administration through executive action, without proper statutory authority and with no established end-date after Congress' repeated rejection of proposed legislation that would have accomplished a similar result.

The use of the word “proper” here does some work. Sessions is not merely saying that the Obama administration acted ultra vires but that the statutory authority was not “proper.” First, this phrasing suggests that there is in fact an independent judgment at hand concerning the legality of enforcing of DACA. Later in the letter, Sessions cites the need for “proper enforcement of our immigration laws” (emphasis added). In other words, this letter is not strictly an assessment of case law. Second, as I will elaborate upon later, the use of “proper” bleeds into the constitutional claim.

Such an open-ended circumvention of immigration laws ...

Sessions writes that DACA amounted to an “open-ended circumvention of immigration laws,” to be precise, the Immigration and Nationality Act. There is no precise explanation why it circumvents the immigration laws. One of the more frustrating aspects of this exercise is that the Obama administration’s 2014 Office of Legal Counsel (OLC) opinion, which affirmed the statutory legality of DACA, has not been withdrawn. (I wrote about that opinion’s flaws .) The attorney general has the power to rescind OLC opinions, but he has not done so in this case. Though OLC opinions do not bind the Justice Department’s litigating positions, the failure to withdraw that opinion creates something of a divided front. There is a similar dynamic at play in the emoluments clauses litigation, whereby DOJ is not standing behind a 2009 OLC opinion, but the office has not yet withdrawn it. (See pages 13-14 of this .)

... was an unconstitutional exercise of authority by the Executive Branch.

Sessions does not explain why it was unconstitutional. There are two possible answers. First, as I at the time, Deferred Action for Parents of Americans and Legal Permanent Residents (DAPA) amounts to a violation of the take care clause of the Constitution. No court reached this issue, though the Supreme Court did add a question presented about this claim. There is a second constitutional claim that has not garnered nearly as much attention: The Obama administration’s open-ended reading of certain definitional provisions of the Immigration and Nationality Act (INA) would run afoul of the nondelegation doctrine. In the I submitted to the Supreme Court (Pages 24-25), I contended that the Supreme Court should avoid that broad reading by narrowly construing the INA.

Recently, the Ninth Circuit invoked the same canon to avoid potential non-delegation doctrine problems concerning the Trump administration’s reading of 8 U.S.C. §1182(f). As I noted in this , the non-delegation argument fails concerning the travel ban because of the president’s inherent Article II powers. In contrast, DACA was expressly not justified on Article II authority, nor could the domestic policy—which applies to aliens of all countries, equally—be so defended (See page 266 of this ). Sessions’s use of the word “proper” could be read to refer to either or both of these constitutional claims.

[DAPA] was enjoined on a nationwide basis in a decision affirmed by the Fifth Circuit on the basis of multiple legal grounds and then by the Supreme Court by an equally divided vote. See Texas v. United States, 86 F. Supp. 3d 591, 669-70 (S.D. Tex.), aff'd, 809 F.3d 134, 171-86 (5th Cir. 2015), aff'd by equally divided Court, 136 S. Ct. 2271 (2016).

The Fifth Circuit’s decision found that DAPA was invalid because (1) it did not go through the notice-and-comment rulemaking process, and (2) it was not supported by the INA. The Fifth Circuit expressly declined to reach the constitutional question, having disposed of the case on statutory grounds. The Supreme Court granted certiorari while Justice Antonin Scalia was still on the bench and added a question-presented concerning whether the policy violated the take care clause. Scalia passed away before oral arguments, and the case . (I what Justice Scalia’s concurring opinion could have looked like.)

Then-Secretary of Homeland Security John Kelly rescinded the DAPA policy in June. Because the DACA policy has the same legal and constitutional defects that the courts recognized as to
DAPA ...

As noted earlier, the Fifth Circuit’s decision pointed out the “legal” defects (that is statutory problems) with DAPA, but it expressly declined to rule on the “constitutional defects” that the state of Texas, and the I joined, advanced. I don’t know precisely what Sessions is referring to here. In any event, it doesn’t matter, because the executive branch independently concluded that the policy was unconstitutional, regardless of the Fifth Circuit’s decision. (See quote 3 above.)

... it is likely that potentially imminent litigation would yield similar results with respect to DACA.

Sessions did not say that his decision to rescind DACA was bound by the Fifth Circuit’s decision in U.S. v. Texas concerning DAPA. Rather, he said that against DACA would “likely” result in another injunction. This is significant because some commentators have suggested that Sessions erroneously believed he was bound by the Fifth Circuit’s judgment. It is persuasive for sure, but not binding on the executive branch. In this sense, (2009)—wherein the INA erroneously concluded it was bound by a Supreme Court decision—is not controlling. (For more on Negusie, read by Daniel J. Hemel and Aaron L. Nielson.) Minimizing the risk of litigation where the government is likely to lose, provides more than a rational basis to wind down the policy.

In light of the costs and burdens that will be imposed on DHS associated with rescinding this policy, DHS should consider an orderly and efficient wind-down process.

Sessions did not say that his decision to wind down DACA is based on an assessment of the executive branch’s priorities and limited resources. Several commentators have suggested that if Sessions had included an additional sentence along these lines, it would cure any administrative law problems. This likely would not assuage Alsup. The Obama administration had a persuasive policy defense of DACA: By focusing on high-priority targets for removal (felons, not families), the government would save resources. Rescinding DACA would in no sense save resources. It would do just the opposite, by increasing the amount of money that would need to be spent on enforcement proceedings. Had Sessions advanced this policy justification, it would have been all too easy for Alsup to conclude that it was arbitrary and capricious, like in Encino Motorcars, LLC v. Navarro (2015), because the numbers don't add up or the defense does not make sense.

There is an additional reason why a policy-based justification could have been inadequate. In another issued on Friday evening, Alsup found “a plausible inference that [President Trump’s] racial animus towards Mexicans and Latinos was a motivating factor in the decision to end DACA.” To reach this conclusion, the court relied exclusively on statements Trump’s from before the inauguration. Alsup suggested that “clear cut indications of racial prejudice on the campaign trail [should not] be forgotten altogether.” Alsup looked to these statements to dismiss the attorney general’s letter as a “contrived excuse.” In other words, Sessions’s conclusion about DACA’s legality was a mere pretext, a sham, to cover up Trump’s hostility towards Latinos. This sort of analysis goes even further than the new normal of federal jurisprudence, as illustrated by litigation concerning the travel ban, because the statements at issue had . Alsup dismisses this concern, admitting that even though “[t]hese statements were not about the rescission ... they still have relevance to show racial animus against people south of our border.”

I’ve come to the tentative conclusion that Sessions put all of his eggs in the legal and constitutional baskets because the alternative arguments could have been set aside on much easier grounds, and potentially used against the administration. I don’t know that I agree with this judgment, but I suspect there was a lot of thought given to this terse letter.

As Attorney General of the United States, I have a duty to defend the Constitution and to faithfully execute the laws passed by Congress.

This is the core quote that Alsup should have engaged with. Article II assigns the president the duty to take care that the laws are faithfully executed. This obligation extends to all of the president’s officers, including—and especially—the attorney general. Sessions has a special responsibility to advise the president concerning his constitutional authority. The attorney general’s conclusion that DACA is unconstitutional is a manifestation of the president’s own determination about his constitutional oath. It is rare that the presidents disclaims their own authority. Trump, through Sessions, has with respect to executive powering concerning DACA and the Affordable Care Act.

Unlike the Bush administration’s conclusion in Massachusetts v. EPA that it lacked the statutory authority to regulate greenhouse gases under the Clean Air Act, here the executive branch has publicly stated that an exercise of authority would violate the oath of office. This aspect of the letter should not be taken lightly. Furthermore, the Administrative Procedure Act (APA) as a general matter to enjoin the president from following through on his constitutional oath.

As the Office of Legal Counsel recognized in an important 1994 , the president has no duty to follow unconstitutional laws enacted by a coordinate branch of government. This principle applies with even greater force to a mere policy made by his predecessor. At that, DACA was a policy issued through a memorandum, bypassing the notice-and-comment rulemaking process.

Perhaps if Congress passed a statute compelling the president to take some specific action, and the president resisted, because he deemed the statute unconstitutional, it would be a closer call for the courts. Zivotofsky v. Kerry, for example, would fall into this frame. Presidents Bush and Obama both disregarded a statute that mandated that passports of Jerusalem-born Americans list Israel as their place of birth. The court ultimately held that the president was justified in not following the statute. But in the context of DACA—where there is no affirmative duty to grant lawful presence to the Dreamers—the APA cannot be used to compel the president to violate his oath of office. To the extent the general prohibition of 5 U.S.C. §706(2)(A) does so, it is unconstitutional as applied. Alsup’s stringent reading of the APA must be rejected. As I wrote in my last post, “I am unable to think of any decision where a court has ordered a president to exercise discretionary authority he has deemed unconstitutional.” For this reason alone, the decision cannot stand.

Finally, that the letter was addressed to Acting Secretary Duke, and not President Trump, is irrelevant. We do not know what private correspondences exist between Sessions and the White House. If such a communication exists—oral or written—it would not be disclosed to the court. We should not lightly presume the attorney general made such a statement limiting the president’s authority without his approval. Yet, Alsup does exactly this, painting the picture of a divided White House, wherein “the Chief Executive publicly favors the very program [his administration] has ended.” I’ll chalk up Trump’s mixed messages to some sort of negotiation tactic before concluding that the attorney general went rogue.

Proper enforcement of our immigration laws is, as President Trump consistently said, critical to the national interest and to the restoration of the rule of law in our country.

This final quote also uses the word “proper,” which suggests there is in fact a policy judgment at hand, about how to use executive-branch resources. Sessions is right, and Alsup is wrong. It is up to the president, and not the court, to decide how those resources should be implemented.

***

Contrary to the court’s ruling, there is more than enough justification within Session’s letter to affirm the rescission. It may lack the clarity and precision that I would prefer—to say nothing of withdrawing the 2014 OLC opinion—but it goes above and beyond whatever the “arbitrary and capricious” standard requires.

It is important to read Attorney General Sessions’s letter in a charitable fashion to avoid the implications of Alsup’s ruling: Trump would be permanently disabled from rescinding DACA. Given the court’s findings concerning animus, nothing Trump could ever do would allow him to reverse Obama’s judgment. No principle of law can justify this outcome. Deference here is not only warranted, but essential, so as not to distort the separation of powers.

Late Saturday evening, the government that it would comply with the ruling, and permit renewal of DACA applications. This decision maintains the status quo as the case goes up the pipeline. Assuming this issue is not mooted by a legislative compromise, on appeal, the Supreme Court should summarily vacate and remand this opinion, by concluding that the rescission is not subject to judicial review. This route is safest way to reverse this judgment, and ensure this doctrine is not extended.