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A Judge Supports Dreamers and the Rule of Law

A Judge Supports Dreamers and the Rule of Law

(Bloomberg View) -- The White House was quick to condemn a federal judge’s decision last week striking down the Trump administration’s efforts to terminate the Deferred Action for Childhood Arrivals program. It called the ruling “outrageous,” and President Donald Trump tweeted that it shows “how broken and unfair our court system is.” 

But the judge’s decision to invalidate the program’s termination, and thus to protect young immigrants who were brought to the U.S. illegally as children, was not outrageous. Strictly as a matter of law, it was eminently reasonable — whatever Congress does or does not do in the coming days and weeks.

To begin to understand why, imagine that in 2021, a Democratic president — say, Bernie Sanders — starts repealing dozens of regulations issued during the Trump administration, on the ground that the new attorney general believes those regulations are “illegal.”

Though Democrats might celebrate, that’s a horrible idea. The executive branch can’t simply assert that the decisions of its predecessor were “illegal.” It has to justify that conclusion. If it isn’t able to do that, it must come up with better grounds for changing course.

In a nutshell, that’s what Judge William Alsup told the Trump administration last week in his DACA decision.

As the judge explained, “DACA grew out of a long agency history of discretionary relief programs,” going back to the Dwight Eisenhower administration and including major initiatives under Presidents Ronald Reagan and George H.W. Bush. Such “programs had become a well-accepted feature of the executive’s enforcement of our immigration laws, recognized as such by Congress and the Supreme Court,” Alsup wrote.

When it adopted the current DACA program in 2012, the Barack Obama administration said that the young people seeking to qualify for its protections had to meet certain criteria. They had to have come to the U.S. before the age of 16, and they had to have resided continuously in the country for at least five years. They also had to have been enrolled in school, and graduated from high school or obtained a GED, or been honorably discharged from the U.S. military or Coast Guard. And they could not pose a threat to national security or public safety. More than 650,000 young people residing in the U.S. meet these standards.

Those who qualify under the DACA program are not to be detained or removed for two years from the time that they successfully apply for its protections (unless they do something wrong). They can also obtain Social Security numbers and receive authorization to work.

In September 2017, Attorney General Jeff Sessions wrote a short letter to the acting secretary of Homeland Security, stating that the program was an “unconstitutional exercise of authority by the Executive Branch.” Because it offered no serious analysis of why that was the case, the letter was a shoddy document from a legal point of view. But the next day, Acting Secretary Elaine Duke, referring to the letter, rescinded DACA.

In invalidating this rescission, Judge Alsup applied a well-established principle, widely ignored even by expert commentators: An agency’s action must be upheld or invalidated only on the basis of the specific reasons the agency itself has given. So the only question was whether the attorney general was right to conclude that DACA was illegal.

The judge thought not. He said that “each feature of the DACA program is anchored in authority granted or recognized by Congress or the Supreme Court.” In his view, the executive branch is perfectly entitled to conclude that DACA enrollees are low-priority cases for removal and to direct its enforcement priorities elsewhere.

The Trump administration’s strongest response pointed to a 2014 appeals court ruling, striking down a related Obama administration program that protected the parents of lawful permanent residents from deportation. If that program is invalid, it could be argued that DACA is invalid, too.

That’s not a crazy argument. But as Judge Alsup emphasized, the DACA program is quite different. Focusing specifically on children, it is more limited than the program covering immigrant parents, and it builds more incrementally on longstanding practices; it stands on firmer legal ground.

Importantly, the judge did not rule out the possibility that in the future the Trump administration might be able to defend a decision to rescind the program. Agencies are perfectly entitled to change course, so long as they offer a reasoned explanation for doing so.

Perhaps the government could explain that the program does not fit with the Trump administration’s overall immigration strategy, because the protection it affords is too broad and categorical. The problem is that it never made that argument.

A broader principle is at stake. A central distinction between authoritarian and non-authoritarian systems is that in the latter, executive officials have an obligation to obey the law. An equally central distinction is that officials must give reasons for their decisions.

They cannot simply assert their power or their will. In insisting on reason-giving, Judge Alsup’s ruling keeps faith with the best traditions of our legal system — and the rule of law. 

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

Cass R. Sunstein is a Bloomberg View columnist. He is the author of “#Republic: Divided Democracy in the Age of Social Media” and a co-author of “Nudge: Improving Decisions About Health, Wealth and Happiness.”

  1. Disclosure: When the program was adopted, I was serving as administrator of the Office of Information and Regulatory Affairs. 

To contact the author of this story: Cass R Sunstein at csunstein1@bloomberg.net.

To contact the editor responsible for this story: Katy Roberts at kroberts29@bloomberg.net.

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