On January 20, 2017, the executive power peacefully transitioned from President Obama to President Trump. At least one judge in San Francisco didn’t get the memo. Yesterday, Judge William Alsup ordered the Trump administration to keep its predecessor’s Deferred Action for Childhood Arrivals (DACA) program in place. This remarkable 49-page order has all the aesthetics of a judicial decision but is, at heart, an amateur act of punditry. Judge Alsup paints the picture of a divided White House, wherein “the Chief Executive publicly favors the very program [his Administration] has ended.” Citing a “presidential tweet,” the court suggests that DACA’s recision “was contrived to give the administration a bargaining chip to demand funding for a border wall in exchange for reviving DACA.”
These talking points could have been plagiarized from the MSNBC chyron. Such rhetoric in a judicial decision would have been unthinkable barely a year ago. But now it passes for the new normal. Once again, the judiciary has attempted to shackle President Trump from making his own judgments about how to exercise his own power. The Supreme Court has reversed Judge Alsup’s outlandish rulings on DACA before. And it will do so again.
The Obama administration, by its best lights, determined that DAPA and DACA were lawful. The Trump administration reached the opposite conclusion, and moved to rescind both polices. In a normal world, that decision would have been the end of the matter. But in the Bizarro World we find ourselves in, a federal judge has now informed the Trump administration that it must keep DACA in effect.
Judge Alsup based his decision on the fact that the executive branch offered only a “pithy conclusion that the agency had exceeded its statutory and constitutional authority,” which was a “mistake of law.” Specifically, the court ruled that the Trump administration’s decision was “arbitrary, capricious, an abuse of discretion, or not otherwise in accordance with law.” Reading this serious charge, one would suspect that President Trump scrawled his legal defense on the back of a cocktail napkin with a sharpie. Hardly.
Sessions’s analysis was premised on a decision from the Fifth Circuit Court of Appeals, which two years earlier had ruled that DAPA was unlawful. As I noted on NRO in May 2015, in halting DAPA, the Fifth Circuit assumed the program would be implemented in a way similar to how DACA had been: as a blanket measure akin to legislation, not a case-by-case exercise of prosecutorial discretion. This opinion strongly suggested that DACA, which was not being challenged, was illegal as well. As even Judge Alsup was forced to concede, “at least some . . . [of the Fifth Circuit’s] reasons for holding DAPA illegal would apply to DACA.”
Indeed, DACA’s legality was on an even shakier footing than DAPA’s, because Dreamers did not need to have any familial relationship with an American citizen to receive lawful presence. Unlike DAPA, DACA could not be justified as a family-reunification measure, but could only be defended on what the Obama administration described as “humanitarian concerns.” (See pages 116–119 of this article.) This is no doubt a legitimate policy argument, but in no sense is it a binding command to the Trump administration. The Fifth Circuit’s ruling was appealed to the Supreme Court, where the justices split 4–4 following Justice Scalia’s passing. Had Justice Scalia been on the bench, I am confident Texas’s challenge would have prevailed.
Again, in a normal world, it would be entirely rational for the attorney general to wind down DACA, which was the model for DAPA, based on a ruling against DAPA by a federal court of appeals, combined with signals that the Supreme Court would agree. (I would be willing to bet that Justice Gorsuch would cast the fifth vote to invalidate the policy.) Not so for Judge Alsup, who insists that “the DAPA litigation was not a death knell for DACA.” For example, he writes, “there is a difference between 4.3 million and 689,000.” That is, because fewer people received DACA than DAPA, the former policy is on a stronger legal footing. Yes, the two numbers are different. But so what? Breaking the law with nearly 700,000 aliens is still illegal.
Judge Alsup next argues that DAPA and DACA are different because citizen children can petition for citizenship for their parents, whereas the Dreamers had no pathway to lawful presence. That argument actually undermines DACA’s legality. Congress has viewed DAPA beneficiaries more favorably as a class, because they at least had the prospect of becoming citizens through their children down the road. Not so for the Dreamers, who had no path to citizenship. Finally, Judge Alsup insists that the Trump administration can cure any problems with DACA by “simply insisting on exercise of discretion.” But the crux of DACA is that there is no meaningful discretion. It operates only as a rubber stamp. And it is not for federal judges to instruct the president how to exercise his discretion.
In any event, these contrived quibbles are irrelevant. President Trump does not need to persuade every single judge about DACA’s illegality before halting it. Judge Alsup, who continues a disturbing recent trend, failed to afford the deference due to a coordinate branch of government in making legal determinations. Trump has the electoral mandate to reverse the decisions of his predecessor and the constitutional obligation to assess the constitutionality of his actions. The judgment here, premised on a decision of a federal court of appeals, provides more than enough basis to justify the recision of DACA. Moreover, the president’s determination that an exercise of his own power was unconstitutional warrants the court’s solicitude. That is a decision for the president to make in consultation with his advisers, and one that should not be disturbed lightly by a federal court. Judge Alsup completely ignored the constitutional issue, focusing exclusively on the statutory question. Indeed, I am unable to think of any decision where a court has ordered a president to exercise discretionary authority he has deemed unconstitutional.
The Trump administration is well within its power to uproot DACA.
The government has already announced it will appeal this ruling. While the Ninth Circuit is unlikely to provide any relief, the Supreme Court has already signaled its dissatisfaction with Judge Alsup’s rulings. Last fall, Judge Alsup ordered the Trump administration to turn over internal White House documents concerning why DACA was canceled. The government filed an emergency appeal to the Supreme Court, urging the justices to shield the executive-branch documents from judicial scrutiny. Then, the case got weirder. In what the New York Times described as an “unusual move,” Judge Alsup filed his own brief, in which he told the justices that the government leaves the Court with an “incorrect impression.” I was unable to find any Supreme Court rule that permits a federal judge to file a brief in an appeal of his own ruling. Judge Alsup’s strange advocacy did not impress the justices.
Last month, without recorded dissent, the Supreme Court rebuffed Judge Alsup’s effort to review internal documents. Not that it mattered, because he was still able to halt the president’s actions based on the limited record before him. This now-common fait accompli, where judges demand access to internal deliberative documents, and when rebuffed rule against the president anyway, evinces the feeling of a show trial. It is no wonder the Supreme Court took the unusual step of intervening in a discovery dispute.
In October 2016, first lady Michelle Obama fortified her cherished White House garden with cement, stone, and steel. Politico observed that this insulation could “dissuade, say, a President Donald Trump from scrapping it the way Ronald Reagan tore out Jimmy Carter’s solar panels after he moved into the White House.” But Trump, like all presidents, has the authority to reverse his predecessor’s decisions and chart a new course. Though the garden remains, the Trump administration is well within its power to uproot DACA. And it will prevail before the Supreme Court.
— Josh Blackman is a constitutional-law professor at the South Texas College of Law in Houston, an adjunct scholar at the Cato Institute, and the author of Unraveled: Obamacare, Religious Liberty, and Executive Power.