At the SCOTUSBlog symposium on the DACA litigation (Department of Homeland Security v. Regents of the University of California), Josh Blackman (South Texas) and Ilya Shapiro (Cato Institute): Don’t judge a brief by its cover: DACA is a good policy that Congress has not authorized. From the introduction:
We recently filed an amicus brief “in support of DACA as a matter of policy but [the government] as a matter of law.” The caption caused quite a kerfuffle on social media. “Is that a thing?” they tweeted. Yes, it is a thing. And the court would be well served to receive more briefs that expressly acknowledge the distinction between law and policy. Most Supreme Court amicus briefs are predictable. Groups that favor outcome A argue that the law supports outcome A. Groups that favor outcome B argue that the law supports outcome B. Occasionally, groups file cross-ideological briefs in which people of opposite political stripes unite to support a specific cause. But even these briefs fall into the same pattern: Regardless of ostensible ideological labels, all the groups on the brief support the policy outcome that the brief’s legal theory advances.
In Department of Homeland Security v. Regents of the University of California, the Cato Institute and Professor Jeremy Rabkin took a different approach. We affirmatively support as a matter of policy normalizing the immigration status of individuals who were brought to this country as children and have no criminal records. (See Cato’s immigration work if you have any doubts.) Moreover, as a matter of first principle, people shouldn’t need government permission to work. But the president cannot unilaterally make such a fundamental change to our immigration policy — not even when Congress refuses to act. Indeed, our deep concerns about the separation of powers and abuse of executive power motivated us to file this brief. Presidents with different priorities come and go. The principle that Congress cannot delegate its legislative power to the president, such that he alone can fix the law, remains.
And in conclusion:
Returning to our theme of the difference between law and policy, we often offer similar advice to law students: Ask your professors to give examples of policies they like but think are not constitutional, or those they don’t like but think are. That question poses a real test of intellectual integrity. If your policy preferences and legal theories always align, you should reconsider the latter. Some policies we dislike are, regrettably, lawful – as the late Justice Antonin Scalia would say, “stupid, but constitutional.” And other policies we favor are, regrettably, unlawful. DACA falls into the latter category.
The president simply can’t make the requisite legal changes by himself to give this relief to the Dreamers. As one of us (Ilya) put it in the Washington Post, such unlawful executive actions both set back prospects for long-term reform and, more importantly for a Supreme Court case, weaken the rule of law. The justices should reverse the lower courts and restore the immigration debate to the political process — exactly where it belongs.
For an opposing view, from the same symposium, Dayna Zolle and Brianne Gorod: The DACA cases may be the next big test for the Roberts Court. It concludes:
In sum, DACA did what Congress legally authorized the executive to do: temporarily defer the removal of qualified “young people who were brought to this country as children and know only this country as home,” so that immigration officers could instead focus their enforcement efforts and limited resources on higher-priority cases. DACA is therefore lawful — just like the various deferred-action programs that preceded it. Given that, Trump cannot now claim that he is compelled to end the program on the ground that it suffers from “legal and constitutional defects.” As the U.S. Court of Appeals for the 9th Circuit recognized, “where the Executive did not make a discretionary choice to end DACA — but rather acted based on an erroneous view of what the law required — the rescission was arbitrary and capricious under settled law.”
Trump may be hoping that the Supreme Court will give him the victory on DACA that the lower courts in these cases have denied him, but there’s good reason to think that it won’t. And that would be a good thing not only for DACA recipients, but also for the rule of law and the country as a whole.
I'm inclined to think DACA is constitutional (a bit tentatively, and I admit that I may have posts leaning both directions over the past few years). But it seems to me that that should not be the question in the present litigation. The President has the executive power to decide constitutional questions independently from the courts. When courts find actions unconstitutional, that is the last word (at least as to parties before the court). But if courts find actions constitutional, the President is entitled to disagree and act on that view. This proposition dates at least to Andrew Jackson's rejection of the Bank of the United States (the Court having previously upheld the Bank in McCulloch v. Maryland), and I would say it's implicit in the idea of judicial review set out in Marbury.
Thus I think the question in the DACA litigation at most is whether the President reasonably believed the program was unconstitutional.
Posted at 6:27 AM