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Opinion: Supreme Court DACA ruling adds insult to injury

Adam Carrington

The Supreme Court got its recent ruling on the Deferred Action for Childhoold Arrivals program wrong, but not for the reasons you probably expect. Its 5-4 decision did not deny the Trump administration’s power to rescind the controversial Obama era policy. In fact, the majority opinion admitted that all parties (and seemingly all justices) agreed the current administration could eliminate the program.

The court instead managed to undermine the constitutional separation of powers in two ways at once. First, the court left in place a policy that tramples upon the legislative/executive line. Justice Clarence Thomas’ dissent gives a stinging indictment of DACA as an exercise in executive lawmaking.

Laws create categorical rules governing human action. Executive power may use discretion when enforcing those rules in particular circumstances. However, executive power cannot make those rules in the first place.

DACA looked to the Immigration and Nationality Act of 1952 as the foundation for granting “lawful presence” to up to 1.7 million immigrants in the U.S. illegally. Yet if Congress in the INA gave the executive branch such broad authority, then it constituted an unconstitutional delegation of legislative power.

Alternatively, the Obama administration had claimed it merely exercised “prosecutorial discretion” in DACA, meaning it prioritized deportations of some immigrants here illegally over others due to scarce enforcement resources. Given the categorical nature of DACA, this argument was hard to accept.

Even assuming its forthrightness, Thomas showed the detailed rules the INA created regarding which immigrants here illegally might receive some form of lawful presence. That regulatory detail, he correctly noted, thwarted claims that Congress intended to give the executive the power to add new groups to the roster.

Thus, either way, granting “lawful presence” as DACA did possessed many if not all the elements of legislative categorization, not executive application. It was lawmaking, not law enforcement.

Second, the court diluted the distinction between judicial power and its executive counterpart. The majority claimed that the Department of Homeland Security failed to adequately follow the rules set out in the Administrative Procedure Act — a foundational statute for administrative law.

In sum, the majority found that the administration’s sloppiness both ran afoul of the required process and rendered its reasoning “arbitrary and capricious.”

The current administration indeed has a track record of sloppy work in addressing issues of administrative law. Such sloppiness has caused unnecessary losses in federal courts. That said, executive officials here did more than enough to satisfy requirements to rescind DACA. The main way it did so pertained to the previous discussion.

The administration also concluded that DACA violated the law. Though correct, one need not even agree with this assessment for the Department of Homeland Security to prevail. Rescinding an executive action because one thinks it originally illegal is among the clearest, even pressing, justifications.

In acting as it did, the court in effect vetoed the reasonable, even mandatory enforcement decisions of the executive branch. It took upon itself an executive power, one the executive branch tried to use to reign in its own exercise of Congress’ legislative authority.

Regardless of this ruling, immigration would have remained a hotly contested policy issue. But the Supreme Court has made it worse, adding the insult of violating separation of powers to the injury of a broken immigration system.

Adam Carrington is assistant professor of politics at Hillsdale College.