Was DACA Unconstitutional? Maybe a Little Bit — But Now We’ll Never Know

Donald Trump claims that he had to end DACA because it’s unconstitutional and he doesn’t want to lose a lawsuit (like the prospect of getting sued and losing has ever stopped Donald Trump). Was President Obama’s decision to establish the DACA program unconstitutional? Maybe a little bit.

trumanThe leading case about presidential power is Youngstown Sheet & Tube v Sawyer, a case from 1952 involving Harry Truman’s attempt to take over privately owned steel mills to prevent any shortages that might result from labor disputes going on at the time (when we were fighting the Korean War). Truman issued an executive order directing federal authorities to seize the mills. The order had a preamble, created duties and obligations and prohibitions, and affected the rights of the owners and workers at the mills in question.

The Supreme Court said that the order had all the hallmarks of a law, and that only Congress — and not the president unilaterally — gets to make law.

So the issue with DACA is whether it — the Deferred Action for Childhood Arrivals program — was a law (which would render it unconstitutional since Congress didn’t create it) or merely a permissible presidential edict as to how to enforce the law. The law — that thing that Congress used to make from time to time — presently makes Dreamers (the 800,000 people who arrived here illegally at the average age of 6 because they, like most kids, were following their parents around) deportable. In other words, the law right now does not differentiate between someone who arrived here illegally as an adult and someone who arrived here illegally as a child.obama4

But here’s the rub: just as presidents don’t get to make law without Congress, so too Congress is not allowed to tell the president how to enforce the law. The Supreme Court has recognized the reality that all presidents have priorities and agendas, and also that the federal government has limited resources. The executive branch (meaning the president, constitutionally speaking) cannot possibly enforce every federal statute against every potential violator everywhere in the United States.

So it is unquestionably within a president’s constitutional authority to prioritize which laws to enforce and how. Had President Obama simply said that, in enforcing federal immigration laws, he was directing federal agencies to leave Dreamers alone and let them live in peace, almost any federal judge would have agreed that he was entirely in bounds.

The sticking point is that Obama also seemed to go beyond that, indicating that he would ignore federal law as a matter of policy rather than executive discretion (that’s important because many courts define lawmaking as setting policy) and setting up an entire bureaucratic schema involving applications, permits, and complex rules without any congressional input or authorization. That isn’t to say that DACA was unconstitutional (and certainly to the extent that it simply forbade the deportation of Dreamers, it was not unconstitutional); it’s simply to explain the part of DACA that even had left-leaning lawyers worried about what a court might say.

Trump’s use of a potential lawsuit (and a potential loss for the government) as an excuse, however, is bogus. In our system, it’s for courts to say what is constitutional and what isn’t, and without any pronouncement on the constitutionality of DACA from a judge, we don’t know whether it was constitutional. Now that Trump has ended DACA, the question of its constitutionality has become what courts would call a moot point — so we’re never going to get an answer.trumpincite

Furthermore, Trump has reversed even those parts of DACA that clearly were constitutional. The talking points issued by the White House state that Dreamers can expect to be deported, and that federal agencies will use the information Dreamers voluntarily gave the government (to avail themselves of the protections of DACA) in rounding Dreamers up and deporting them. So Trump hasn’t just ordered the dismantling of DACA’s infrastructure; he’s also ordered a change in enforcement priorities that he clearly did not have to undertake as a constitutional matter. Not only did Trump say that DACA represented an unconstitutional law; he said it was inconsistent with his own objectives as chief executive.

Put simply, Trump did not have to do what he did. He can’t blame Barack Obama for the predicament 800,000 Dreamers now find themselves in, and he can’t blame the Constitution. He made a decision that presidents get to make, and he owns the consequences.

-bb