Donald Trump has said that the Constitution’s Article II gives him “the right to do whatever I want as president.” It surely does not, but we can explain Trump’s extravagant statement by the fact that he is both a prolific liar and an ignoramus who has never read the Constitution.
More surprising was a Washington Post op-ed last week by a respected law professor—Zachary Price of the University of California-Hastings—arguing that the Supreme Court’s June decision invalidating the administration’s effort to rescind the Deferred Action for Childhood Arrivals (DACA) program gives Trump cover for claims to sweeping powers to “suspend federal payroll taxes altogether, or cancel Obamacare coverage requirements, legal limits on immigration policy and any other laws he dislikes.” Professor Price’s op-ed echoes an earlier essay of his on SCOTUSblog. In both, he worries that the Court’s decision, by making it difficult for the Trump administration to undo executive action by the Obama administration, will in turn license Trump to take actions that will be difficult for a future Democratic administration to undo.
Although I agree with Professor Price’s admonition that judicial decisions should be rooted in “generalizable principles” that make sense regardless of the policy preferences of any particular administration, I find his concern about the DACA case unfounded. True, his fellow Bay Area UC law professor, John Yoo, has also argued (in National Review and Newsweek) that the DACA decision can be weaponized by Trump, and the administration may have gotten some of its latest ideas for unilateral action from Yoo himself. However, blaming Chief Justice John Roberts and the Supreme Court for Trump’s monarchical view of his powers is a bit like blaming the Beatles for Charles Manson. If presidential maximalist Yoo didn’t exist, Trump would have invented someone like him.
Below I explain why Professors Price and Yoo are misreading the DACA case. I nonetheless share their worry about how difficult it will be to repair the damage Trump has done.
What the DACA Ruling Did
Readers will recall that DACA is chiefly a program of executive forbearance. After Congress failed to pass legislation protecting the so-called Dreamers—certain undocumented immigrants who were brought to this country as children—the Obama administration adopted DACA, which promised temporary relief from the threat of deportation and allowed eligible Dreamers to work and pursue higher education. An expanded version of the program was held invalid by a federal appeals court in a ruling that was affirmed by a 4-4 decision of the U.S. Supreme Court, but the original DACA program remained in place. Despite giving reassurances to the Dreamers, the Trump administration tried to rescind DACA. The Supreme Court ruled in June that the procedures it used rendered the rescission invalid.
Why? Did Chief Justice Roberts and the rest of the Court invent some new legal principle under which an unlawful executive branch policy cannot be rescinded by a subsequent administration if anyone has relied on that policy? To read Professors Price and Yoo, one would think so. In fact, however, the Roberts opinion applied longstanding principles of administrative law.
The core such principle requires that all agency actions—including those that rescind prior actions—be rational. The Administrative Procedure Act bars “arbitrary and capricious” actions. Whether an action is arbitrary and capricious can depend on the reasons for that action. For example, if an agency requires that new cars be outfitted with airbags to reduce the severity of injuries, that decision will likely survive judicial review; if it does so simply to enrich manufacturers of airbags because those manufacturers have extensive political influence (and that fact comes to light), the decision could be set aside.
In the DACA case, the Department of Homeland Security had sought to rescind DACA based on the view that it was illegal. However, the Court said, even if the administration was right that the Obama administration lacked the power to make undocumented immigrants eligible to work and for other benefits, the department had not explained why it was canceling the entire program—including enforcement forbearance—rather than simply ending the legally questionable elements.
Crucially, the Supreme Court allowed that the Trump administration could have rescinded DACA based on a change in immigration enforcement priorities, but that was not the reason given by the Department of Homeland Security—except as part of a post hoc memo that was produced as part of litigation rather than in the agency process itself.
The DACA case raises an important question, but it is not the one that Professors Price and Yoo worry about. Rather, the question is why the Trump administration took the risk that the Supreme Court would affirm lower court rulings invalidating DACA rescission rather than go back to the drawing board and cleanly rescind DACA on policy grounds—as it could have done in less time than it took the case to wind its way through the courts.
To my mind, there are three main possibilities. First, one should never overlook the possibility of simple incompetence, especially in a government headed by Donald Trump and run by the “best people” he appoints. Second and more nefariously, Trump might have been trying to play a double game—purporting to rescind DACA to please his anti-immigrant base but doing so in a way that the courts would not allow so as to avoid taking the political heat for canceling a broadly popular program. Third and most nefariously, as suggested on my blog by my colleague Professor Jed Stiglitz, the Trump administration’s legal strategy in the DACA case fits a familiar pattern of offering patently absurd arguments to the courts in the hope that they will nevertheless be accepted and thus prove Trump’s dominance over a judiciary he thereby breaks. If the administration has been trying to break the courts in this way, it appears that to succeed he still needs one more appointment—which he would very likely get in a second term.
The Real Irreversibility Worry
Whatever the Trump administration was trying to accomplish in the DACA case, it lost. Spinning the ruling as a win for Trump and his claims to unbridled executive power is therefore far-fetched.
That said, Professor Price is not wrong to worry that presidents can act unilaterally in ways that are then difficult for future presidents to unwind. Although the DACA decision does not substantially increase that risk, it is already large and effectively realized. Consider a few illustrations.
Professor Price says that under the DACA decision’s reasoning, lax enforcement of environmental laws by a deregulatory administration could hamper a subsequent administration’s efforts to beef up enforcement. We have seen that this worry is misplaced as a critique of the DACA ruling. But the broader concern is legitimate. Lax enforcement of environmental laws can do irreversible damage to the environment itself, so that even if a new administration reverses enforcement priorities on day one, by then it will be too late to repair much of the damage. No law can bring back a newly extinct species or restore a destroyed ecosystem that evolved over millions of years.
A similar dynamic concerns foreign policy. Through the conduct of diplomacy, entry into or withdrawal from international agreements, and the use of military force, a President—acting alone or with the cooperation of Congress—can shape relations between allies and adversaries alike in ways that a successor might not be able to change. To give one example, the decisions during the Bush administration to invade first Afghanistan and then Iraq seriously constrained the foreign policy of both the Obama and Trump administrations. And of course, no subsequent administration can undo the damage to families of members of the armed services who gave their lives in these and other conflicts.
Finally, if one were to tally the difficult-to-reverse damage that Donald Trump has done to the United States, a very substantial entry would account for the norms of decency and democracy that he has disregarded. It had been a long time since the country had such an openly racist and misogynist President. And we had never before had such an ignorant, corrupt, and narcissistic one. The evil Trump has unleashed and encouraged could take a very long time to reverse.
The long-lasting damage is real, but it has little to do with administrative law.
