For years, it was as natural as breathing for Republicans to cry that former president Barack Obama’s immigration policies were nothing but lawless exercises in Caesarism. Republicans regularly denounced his executive actions to defer deportations in the most lurid of terms, often without feeling the slightest obligation to defend their claims.
But now, with the case over the “dreamers” set to be argued before the Supreme Court on Tuesday, the ease with which Republicans reached for such charges might be a key reason President Trump finds himself in a serious political and legal jam.
The high court will hear arguments about Trump’s decision in 2017 to terminate Obama’s Deferred Action for Childhood Arrivals, or DACA, which protected from deportation hundreds of thousands of immigrants brought here illegally as children.
The decision was the subject of immediate lawsuits, and lower courts ruled against the administration. For a detailed overview of the legal arguments at play, see this piece by Andrew Pincus.
The upshot is that the administration could now lose before the Supreme Court precisely because it relied on claims of Obama’s supposed lawlessness as its rationale for ending DACA. It did so because this was politically easier than basing the decision on solid legal grounding would have been.
One irony about the constant attacks on Obama along these lines is that Trump actually has flagrantly abused his powers on immigration in ways Obama did not. While Obama’s DACA has been widely defended as an act of legitimate enforcement discretion, Trump declared a national emergency in bottomless bad faith to get his wall funded and reportedly instructed officials to break the law to shut down asylum seeking entirely.
Yet in terminating DACA, the Trump administration suddenly developed an aversion to the use of executive authority in the immigration context.
The administration justified ending DACA not by announcing that the president was exercising his discretion to do so — after all, it was created by executive action, so it can be undone by it — but rather by arguing that the original program was unlawful and thus couldn’t continue.
Jeff Sessions, the attorney general at the time, declared DACA unconstitutional in a perfunctory one-page letter, and the Department of Homeland Security rescinded the program on the basis of Sessions’s claim.
But this has created a legal vulnerability. That’s because, as a lower court ruled, the administration has not made a serious case that the program actually is unconstitutional (the previous administration, of course, argued the opposite). That court described Sessions’s reasoning as “scant” and “barebones,” which rendered the decision “arbitrary and capricious,” and thus invalid.
What’s interesting here, however, is why the administration did this: Trump didn’t want to take the step of using his executive authority to affirmatively end DACA, because it would have been terrible politics.
So the administration simply declared it unlawful to end it without taking responsibility for doing so.
The New York Times reports on how Trump and advisers like Stephen Miller reached this decision:
The day before making the announcement in 2017, the president huddled with Hope Hicks, a close aide at the time, and Mr. Miller in the small dining room off the Oval Office, hesitating about his decision and agonizing over what to say, according to people close to him. He wanted to appear tough to his voters, but he was anxious about being seen as mean to young people.In the end, the argument that was most persuasive to Mr. Trump was the one made most forcefully by Mr. Sessions: The program was simply against the law. The next day, in his formal announcement ending DACA, the president wrote, “I do not favor punishing children,” but he quickly added that “the program is unlawful and unconstitutional and cannot be successfully defended in court.”
Ending DACA has indeed turned out to be terrible politics. The dreamers are highly sympathetic, and as Pincus points out, DACA is a “uniquely popular program” that has received support from “every segment of American society,” including the business community, universities, law enforcement and faith groups.
Instead of owning this decision, Trump had what he thought was a far easier path forward: His administration could simply reach for the GOP argument that if Obama did it, then it was surely unlawful, and this wouldn’t even have to be explained at serious length. But this now might fail.
Of course, it’s possible the Supreme Court will rule that the administration is right, that DACA is unlawful. But as Pincus and immigration attorney David Leopold note, this would require the justices to act as a rubber stamp for the administration’s bad faith, which they might be unwilling to do.
What’s more, if that does happen, it could further erode the court’s credibility. And Trump might end up taking the blame for ending the program anyway — or at least he and Republicans will find themselves under new pressure to protect the dreamers in some other way.
Alternatively, if the Supreme Court rules that the administration hasn’t sufficiently made the case that the program is unlawful, leaving it in place for now, Trump could simply terminate it with executive authority. But that would set in motion a new set of procedural requirements for doing so that would keep this mess unresolved for many more months.
At any rate, that’s exactly the thing Trump had hoped to avoid doing all along. And the means he resorted to for avoiding that is precisely what has landed the administration in its current fix.
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