While on the campaign trail, then-candidate Donald Trump chased slurs against Latin American immigrants with promises to end President Barack Obama’s Deferred Action for Childhood Arrivals (DACA) policy, which gives a work permit and protection from deportation to some people brought to the United States as children. During his June 2015 announcement speech, for example, Trump referred to Mexican immigrants as, among other things, “rapists,” and to DACA as an “illegal executive amnest[y].” Then in February of this year, President Trump pledged to “deal with DACA with heart.” Trump reiterated his supposed commitment to “heart and compassion” on Tuesday in a statement on ending DACA. Gone was the fiery invective of the campaign. Instead, Trump framed the decision as constitutionally necessary—a matter of restoring the balance of powers by punting the matter to Congress.
Any pretense of compassion or legal substance, however, died with Attorney General Jeff Sessions’ Tuesday morning speech on the decision. Acting as the public face of the administration, Sessions dealt the fatal blow with enthusiasm.
Sessions’ remarks were full of misrepresentations. He only grazed the unconstitutionality argument, failing to expand on that claim or raise specific statutory concerns. Neither Sessions’ letter to the Department of Homeland Security (DHS) directing it to end the practices that make up DACA, nor the DHS memo doing so, provided additional detail. Sessions and the U.S. Department of Justice have yet to elaborate elsewhere. That’s because the administration’s opposition is political in nature, a point even conservative blogger Erick Erickson concedes.
Sessions has long been vocally anti-immigrant. In a 2010 letter opposing the DREAM Act, the legislation that would create a process for legalizing unauthorized immigrants brought to the United States as children, then-Sen. Sessions disingenuously warned his colleagues that the legislation would precipitate economic disaster and crime. In 2013, Sessions launched a one-man campaign to kill bipartisan immigration reform in the Senate—and succeeded through sheer determination. When DACA came up at his confirmation hearing, Sessions telegraphed support for rescinding the policy.
Roe is gone. The chaos is just beginning.
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Empowered by Trump, Sessions is back to his distortionary tactics. In his remarks on Tuesday, Sessions referred to “unilateral executive amnesty” with regard to Obama’s implementation of DACA—although the program, administered by DHS, only grants deferrals of deportation in two-year increments. He also lied, claiming DACA “contributed to a surge of unaccompanied minors on the southern border that yielded terrible humanitarian consequences” and “denied jobs to hundreds of thousands of Americans.” At Slate, Mark Joseph Stern vanquished these claims ably.
The attorney general’s willingness to misrepresent the law for political purposes does not end there. On Tuesday, Sessions tried to spin a Texas district court’s 2016 preliminary injunction against an expansion of DACA and the implementation of the Deferred Action Against Parental Accountability (DAPA) policy—and the subsequent U.S. Supreme Court split on the matter—as tantamount to judicial precedent finding DACA “inconsistent with the Constitution’s separation of powers.”
The real basis for those rulings? The Administrative Procedure Act, a statute that governs the process by which agencies set policy. Neither the district court nor the circuit court reached the issue of constitutionality in that case. The Fifth Circuit even specified, in a footnote, “We find it unnecessary, at this early stage of the proceedings, to address or decide the [constitutional] challenge.” Moreover, the constitutional challenge to which the court refers is based on the Take Care Clause, directing the president to “take care that the laws be faithfully executed,” not a clean separation of powers argument. Put simply, a Take Care challenge claims the president did not do his job; a separation of powers argument alleges that he tried to do Congress’ job. It’s not clear which the current administration is relying on.
Even on a charitable reading, the administration’s legal claim does not hold up. As Professor Leah Litman points out at the Take Care blog, this administration has “embraced expansive views of presidential authority, particularly over immigration.” Take, for example, the Muslim ban. Or the fact that days before tasking Sessions with axing DACA, Trump fulfilled another campaign promise by pardoning former Maricopa County Sheriff Joe Arpaio, who had a penchant for violating the constitutional rights of those he suspected to be in the United States illegally. Arpaio had been convicted of criminal contempt after violating a court order instructing him to discontinue this unconstitutional practice.
Contrary to Trump administration talking points, the question whether DACA is legal begins with statutory, not constitutional, analysis.
The administration has used language that evokes the most famous case limiting executive power, Youngstown Sheet & Tube Co. v. Sawyer, the Korean War-era conflict that arose out of President Harry Truman’s decision to seize steel mills during a strike. But in that case, Truman had claimed to be acting under the aegis of “his constitutional powers as the Nation’s Chief Executive and the Commander in Chief of the Armed Forces of the United States.” By contrast, President Obama and DHS specified that the executive branch was enacting DACA as an “exercise of discretion within the framework of the existing law.” In other words, Truman claimed he had the authority to act independent of any other branch while Obama was exercising latitude in how he executed laws passed by Congress.
And DACA’s defenders’ responses were as specific as Sessions’ was vague. The Yale Law clinic representing a Mexico-born New York medical student, Martin Vidal, in his challenge to the Texas injunction against expanding DACA sent a same-day letter announcing its intent to amend its complaint. Ending DACA without proper process or rationale violates the APA, the attorneys wrote, and the Constitution’s Equal Protection Clause, given abundant evidence of Trump’s anti-Latino animus.
By Wednesday, 15 states and the District of Columbia had filed suit to oppose rescission, with California’s attorney general, Xavier Becerra, promising a separate complaint. Like Vidal, the states argue that Trump’s policy reversal violates the APA and is unconstitutionally discriminatory. They add that the failure to prohibit the use by immigration officials of information gathered from DACA applicants, who were assured it would not be used against them, is fundamentally unfair and thus a violation of due process.
States list harms ranging from the loss of private- and public-sector employees (and their tax contributions) to an increase in health expenditures if DACA recipients become ineligible for health insurance. Universities, they note, will not be able to offer grantees in-state admissions preferences and tuition, and thus will be stripped of a means of promoting diversity.
Perhaps Sessions is ready to respond to these challenges and simply omitted his reasoning from his victory speech. But whether he has a fully developed legal rationale or not, Sessions chose not to address those thorny legal issues surrounding the momentous decision to end DACA, much less the long-term implications for 800,000 people in the United States, their families, and their communities. Instead, Sessions crowed over securing a political victory he has coveted for years. That choice reveals much about this administration’s values.