The law isn’t always what we’d like it to be; it doesn’t bring me any joy to say that Donald Trump was likely within his constitutional authority to scrap DACA. What is done by executive fiat (President Obama created DACA — Deferred Action for Childhood Arrivals — without congressional input) can be undone by executive fiat. As many Americans seemed to forget last November, elections have consequences. (Jill-Stein voters will have themselves to blame when reproductive choice goes the way of the Caribbean Monk Seal.)
But true to form, Team Trump was so sloppy in its execution that it likely rendered lawful ends unconstitutional with manifestly lawless means. The “talking points” released by the White House, which were almost certainly authored by that hideous little Nazi Stephen Miller, include the following information:
- that Dreamers (the 800,000 people who were brought to the United States as children and were never naturalized as citizens) can expect to be deported if and when Congress fails to protect them within the next 6 months; and
- that the information Dreamers gave to the government when they applied for DACA permits — you know, like home address, personal phone number, workplace, and email address — will be used by federal immigration officials to find, round up, and deport Dreamers after the expiration of Congress’s 6-month deadline.
Let’s talk. The Fifth Amendment to the United States Constitution provides that any person within the jurisdiction of the United States (and yes, Trump voters, that includes non-citizens) is entitled to due process of law before the government takes away that person’s life, liberty, or property:
No person shall be . . . deprived of life, liberty, or property, without due process of law . . .
Process means procedures and due, in this context, means fundamentally fair. The Supreme Court has explained that the basics of due process include 1) notice, 2) a hearing, and 3) an impartial decision-maker. As to the adequacy of these three elements of due process, courts look primarily at a) the importance of the interest that the government wants to take away, and b) the risk of mischief or mistake under the procedures the government is using.
Notice includes both notice that whatever you did wrong was punishable under the law (meaning there was a preexisting law or rule making your conduct wrongful) and that you are being accused of running afoul of the rules.
To repeat, Trump says he’ll install procedures under which DACA applicants will have their applications used against them. Dreamers were obviously not put on notice that they would be punished for applying for DACA permits; in fact, they were told that they would be rewarded. In other words, Trump’s White House does not propose to punish Dreamers for violating the rules, but for following the rules.
This abuse of normal constitutional standards invites an entirely new breed of due-process analysis. Whereas courts are accustomed to dealing with allegations that existing procedures are not protective enough of a person’s interests, they have rarely had to address procedures overtly designed to harm a person’s interests. Put another way, due-process cases usually involve passive violations of constitutional commands, not dynamic violence against those commands. To deal with Trump and his alt-right minions, courts might have to invent some new tests.
In light of the importance of the interests involved here — the freedom of individuals to remain in the only country they’ve ever known (and often served) — and the potential for mischief, it’s exceedingly unlikely that any judge will abide Trump’s debased version of due process.
I am apparently not the only one to have noticed. Here’s part of a complaint filed by 15 states yesterday:
This will not go well for Trump unless he disowns the talking points issued by his own White House.