If one president decides that he has the power to suspend the application of a law, when he clearly has no such right, may his successor, by an executive decree, reverse his predecessor’s decision? This question, ridiculous as it sounds, is now actually before the United States Supreme Court, and will be resolved by a decision, probably this June.
The precise point at issue is President Obama’s announcement on June 15, 2012 of the Deferred Action for Childhood Arrivals (DACA) program. Obama took executive action following Congress’s failure, once again, to pass the so-called DREAM Act, which would have given illegal aliens who arrived in the United States as children certain privileges, including a path to citizenship. The president took action even after conceding he had no legitimate constitutional power to do so.
Anyone who knows anything about the separation of powers in our Constitution understands that it is supposed to be the job of the legislature to legislate (Article I, section 1 provides that “[a]ll legislative powers herein granted shall be vested in a Congress of the United States”), and that of the president to carry out the laws as the legislature has written them. The Constitution explicitly states in Article II, section 3 that the president “shall take Care that the Laws be faithfully executed.”
The nation’s immigration laws, as the time President Obama issued his order, clearly mandated that children brought into this country in violation of the statutes were subject to deportation, along with the adults who brought them. But the president claimed that just as prosecutors may choose what offenders to pursue, he had the right, as head of the executive branch, to declare, in substance, that a certain class of offenders simply would be exempt from some provisions of the immigration laws.
To objective observers—and at least one lower federal court—this looked more like a failure to “take care,” or a presidential claim of an ability to ignore statutes, than prosecutorial discretion, which is generally only applied in individual cases.
One British King, James II, lost his throne in 1688 because he claimed the power to dispense with certain Acts of Parliament, and the Constitution’s “take care” clause was an American guarantee that this would not happen in this country.
Unfortunately, in our degraded age, this ancient Anglo-American tradition, and the Constitution’s mandate of separation of powers, have seriously eroded. It is now lamentably typical that executive branch officials, acting through administrative agencies—what Republicans often refer to as the “deep state,” what President Trump calls the “swamp,” and what scholars denote as the “administrative state”—are usurping the legislative role, and too often the courts have deferred to them.
This may be about to change. Neil Gorsuch, one of President Trump’s two appointments to the Supreme Court, has written a book powerfully arguing that the courts should rein in the agencies and restore our heritage of the separation of powers. Gorsuch quotes the famous words of James Madison, one of the nation’s most influential founders, who in Federalist 47 maintained that “[n]o political truth is” more important to “liberty” than the separation of powers because the “accumulation of” power “in the same hands” inevitably leads to “tyranny.”
This timeless political truth was understood by the constitutional scholar David Bernstein, when, considering President Obama’s actions on DACA and his many other similarly suspect executive orders, Bernstein simply branded the Obama Administration “lawless.”
So degraded, however, has our jurisprudence become, that there is no assurance the Supreme Court will allow President Trump to exercise what ought to be his legitimate constitutional duty to set the law straight.
The proponents of upholding President Obama’s dubious action here have argued, not without at least some reason, that in the years since DACA was put into place, the “Illegal Aliens” have acted in reliance on what the last president did. They have been secure in their residence here, the argument goes, and it would be unfair now to remove from them the protected status of the immigration laws they have enjoyed.
There are also some highly technical arguments that what President Trump sought to do in reversing Obama’s actions did not fully comply with some nuances in the Administrative Procedure Act (“APA”), given there was not a lengthy and lucid explanation of all the considerations involved, and why precisely the choice was made to cancel Obama’s program. Still, given that President Trump merely sought to carry out the directives of the Constitution itself, it is difficult to believe that the APA could (you’ll pardon the expression) trump that.
Nevertheless, arcane procedural moves have had some appeal for Chief Justice John Roberts, who now has a record not only of upholding the Patient Protection and Affordable Care Act (“Obamacare”) on dubious grounds, but also of denying to President Trump the power to ask a question on the census regarding legal immigration status, because he and the Court’s four liberals believed that the president’s motives were not as stated.
The chief justice has suggested President Trump is wrong to claim that American judges are anything other than objective. But on this point—the ideological bias of judges—the president is clearly right, and Roberts himself has been nothing if not ultimately political in some of his actions.
The four remaining progressives on the court, the two justices appointed by President Clinton, Ruth Bader Ginsberg and Stephen Breyer, and the two appointed by President Obama, Sonia Sotomayor and Elene Kagan, are all believers, as was Obama, in what they have called the “living constitution”—the notion that the document’s meaning ought to shift with the times, and should accord with “evolving standards of decency,” that have been interpreted, generally, to coincide with the political program of progressives.
DACA was a part of that program. And, indeed, so is a lax enforcement of immigration laws, if not open borders itself. There likely will be four votes on the Supreme Court, motivated by progressive ideology, for preventing President Trump from overruling President Obama.
There are three champions of the rule of law and the original understanding of the Constitution still on the court: Gorsuch, Clarence Thomas, and Samuel Alito, and we can expect them to uphold President Trump’s action.
Where Roberts and the newest Justice, Brett Kavanaugh, will come out is more difficult to predict. Roberts will likely do what he thinks is in the court’s long-term institutional interest, and, as he did with Obamacare, he may seek to avoid a political controversy that would ensue if these minor illegal immigrants (the Illegal Aliens) are repudiated. Kavanaugh, who tends more than does Gorsuch to the upholding of the administrative state, might join the chief justice in that endeavor.
Or maybe not. President Trump, defying his anti-immigration erstwhile supporters such as Ann Coulter, has announced that he is very much amenable to working out a legislative deal for the Illegal Aliens, and in doing so he has at least demonstrated his higher regard for separation of powers than that possessed by President Obama.
Knowing that the current president plans to defer to the legislature and not make law himself, perhaps Roberts and Kavanaugh (and maybe even one or two of the liberal justices) will, in the end, prove faithful to the Constitution, uphold what President Trump has done, and return the power to make laws to the legislature where it belongs.
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Author: Stephen B. Presser
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