The clock is ticking for the “Dreamers,” the Americans-in-fact who were illegally brought into the United States as children, who have built lives here, and who have every reason to want to stay and continue to contribute to their country. In a few short weeks, however, Donald Trump is apparently going to instruct federal agents to begin deporting these innocent people.
Why is this happening? Much of the story is well known, but it is important to recall the key steps that have set this impending tragedy in motion.
After Congress failed to pass a bill to reform the immigration system during his presidency, Barack Obama decided to exercise his prosecutorial discretion to deport only people who posed an arguable danger to the country. Obama was, in fact, otherwise extremely aggressive in his deportation efforts, so aggressive in fact that he earned the derisive nickname “deporter-in-chief” by immigration advocates.
But Obama did take the humane and sensible step of trying to let the Dreamers know that they were not being targeted, allowing them to continue to make long-term decisions like attending college and graduate school, buying homes, and so on.
Because it was Obama who took that action, Republicans decided that it was per se unacceptable, and they immediately attacked his “dictatorial” action. Their court challenge to a companion program for Dreamers’ family members succeeded, but their challenge to the Dreamers program (formally Deferred Action for Childhood Arrivals, or DACA) was never resolved by the Supreme Court.
Last September, Donald Trump announced that he would end DACA in six months, a deadline that now looms. The question is what Trump and Congress can do now. The surprisingly simple answer is that Trump himself could resolve the problem that he created.
Interestingly, however, it is also possible that Trump’s legal arguments should have forced him to end the program immediately. Indeed, Trump’s delay in ending DACA raises an important question about his sincerity in saying that the program is unconstitutional. Is his delay evidence of bad faith? Even more provocatively, does that delay change the constitutional calculus?
The Executive’s Options in the DACA Debate
The extremists who advise Trump on immigration issues claim that the DACA program is an unconstitutional exercise of executive power. They argued, as the Supreme Court might well have held if Antonin Scalia were still alive when the Court ruled on the case, that a president has no option but to end what they assert is a blatantly unconstitutional action.
Trump then expressed support for allowing the Dreamers to stay in their country and gave Congress six months to “do it right,” that is, give Dreamers legal status via legislation rather than executive order.
In a column last month, I noted the oddity of Trump’s decision to wait six months to shut down the program: “Although his reason for extending it might have been defensible (giving Congress time to react), there was no effort at all to explain why it was acceptable to continue to violate the Constitution for six more months.”
My point there was not in the first instance a constitutional argument but simply a recognition of a puzzling question. Trump could have said that he was giving Congress only three months, or he could have given them six years, or any other arbitrary amount of time. He could even have put a decision back on hold and told his most fervent supporters to forget about the Dreamers and instead focus on the real “bad hombres” that they all (incorrectly) believe are pouring over the border every day. Why six months?
Because he issued the order ending DACA, Trump can amend that order at any time to extend his arbitrary deadline. He could say, for example, that he underestimated the amount of time it would take Congress to fix the problem. This might have the disadvantage of making Congress think that Trump will never impose a real deadline, and – much more important to Trump – it would involve him appearing to have retreated, which would make him a loser. Even so, because there was no attempt to justify Trump’s original time frame, there is nothing stopping him from changing it now.
An independent observer, however, might be inclined to give Trump’s advisors the benefit of the doubt and say that they are truly worried about the ongoing damage to the Constitution wrought by Obama’s executive order, and that they thus feel honor-bound to end that violation as soon as possible. I am not at all willing to believe that they believe that, but I am willing to wander into this fantasy world for the sake of argument.
What would an honorable, Constitution-defending Trump administration lawyer do in the face of a constitutional violation that Trump unilaterally can end? Why would they delay at all, and even if they did agree to a delay, how would they determine what is permissible under the Constitution? What would a good-faith analysis of winding down DACA have looked like?
The Limits on Presidential Delay in the Face of a Constitutional Violation
Just as there were lawsuits attempting to end DACA, there have also been legal challenges to Trump’s order ending DACA. One of that second group of challenges resulted in a federal district court’s recent preliminary injunction, which held that Trump’s reason for ending DACA was an “arbitrary and capricious” exercise of executive power, thus violating the Administrative Procedure Act.
Explaining his decision to issue the injunction, Judge Nicholas G. Garaufis focused in part on the point that I described above, which is that Trump claimed to believe that DACA is unconstitutional yet delayed in curing that supposed assault on the Constitution.
In short, Judge Garaufis said that it was not merely odd that Trump seemed rather lackadaisical about reversing this supposedly horrible executive power grab by Barack Obama, it was actually constitutionally impermissible for Trump not to end DACA essentially immediately.
There is a lot to be said for Judge Garaufis’s argument. Indeed, it would even be possible to extend that argument to say that Trump waived his right to end DACA by waiting until he had been in office for more than seven months.
How would that argument work? Given that DACA has been such a highly salient political issue that Republicans and especially anti-immigrant conservative activists have been pushing for years, it should not have been necessary for Trump’s Justice Department to “study” the constitutional issue until early September of last year. (This is the mirror image of the point that some people have made about Trump’s Muslim Ban(s), which were purportedly based on the need to take time to craft practical solutions to the supposed problem but that are clearly delaying tactics.)
Trump had a long list of things that he promised to do “on Day One,” and this should have been (by the logic on which Trump is relying) on that list. If he could not even be bothered to notice that such a high-profile supposed constitutional violation was happening, then we might conclude that he does not truly think that it is a violation at all.
Although Judge Garaufis did not go that far, he did say that Trump’s willingness to delay was itself a constitutional violation on its own terms. The president, under this reasoning, has no discretion to wait around once he has noticed a problem. It is thus unacceptable to say, “Hey guys, I just noticed a constitutional violation. Let’s stop it next spring.”
Or as Judge Garaufis put it: “”If the DACA program was, in fact, unconstitutional, the court does not understand (nor have the Defendants explained) why Defendants would have authority to continue to violate the Constitution, albeit at a reduced scale and only for a limited time.”
Professor Michael Dorf recently took issue with that aspect of the judge’s ruling. Agreeing with the bulk of the ruling – and noting that the judge essentially gave the Trump Administration a road map to cure the defects of its order – Dorf nevertheless argued that “Judge Garaufis just gets wrong” the alternative holding that Trump’s phase-out is an unconstitutional delay.
Dorf invokes three powerful precedents to explore the logic of a delay in ending a constitutional violation. First, he mentions the US Supreme Court’s “with all deliberate speed” language from what has become known as Brown II, the Court’s follow-up to its groundbreaking Brown v. Bd. of Education case.
Dorf notes that Brown II probably invited the states to delay school integration, but he concludes that “the core authority of the Court to phase in constitutional remedies over time rather than all at once where other prudential factors exist remains intact.” What might those other prudential factors include? That is the crux of the issue here.
Dorf’s second example is prison over-crowding cases, where federal and sometimes state courts have found prison systems to violate the Constitution and ordered relief. Notably, however, that relief does not include an order to release the necessary number of prisoners the same day as a court’s ruling but rather a time frame that allows states to combine prison building with sorting procedures for releasing prisoners who pose no danger to society.
The third example comes from the Canadian Supreme Court, which held that all laws in Manitoba were unconstitutional because (contrary to that country’s constitution) the laws were not promulgated in both English and French. Even so, that court concluded (quite reasonably) that all provincial laws in Manitoba were not immediately null and void until they were re-enacted properly.
Dorf invokes these examples to show that both as a matter of precedent and by simple logic it is sometimes unthinkable not to allow a grace period to cure constitutional violations. I agree with his bottom line, and it is worth thinking further about how these examples weigh on Trump’s options in dealing with DACA.
The Dreamers Issue Is Procedural, Not Substantive
We need to recall that Trump himself has said that the Dreamers should be allowed to stay in this country – which, again, is their country. Even if he had never said that, however, it remains true that Congress could cure the constitutional defect at issue here by enacting legislation essentially immediately.
In other words, the constitutional problem does not arise from something happening that must never be allowed to happen. By contrast, the US Constitution says that schools cannot be racially segregated, as the Court held in Brown I and reaffirmed in Brown II. Federal and state constitutions do not permit prisons to be crowded to the point of being cruel and unusual. The Canadian constitution prohibits monolingual legislation.
Nothing that Congress or a legislature could do (short of amending the relevant constitution) can change any of that. Congress could not say, “Well, we’ve decided that separate-but-equal is OK,” or “Prisoners are scum, so let ‘em live in their own filth.” Bilingualism is not waivable by simple legislation in Canada.
By contrast, if Congress were to pass a law saying, “What Obama did in DACA, we hereby endorse,” the constitutional issue would be resolved. Far be it from me to say that procedural defects, especially those sounding in the separation of powers, are unimportant. I am instead pointing out that the “thing that’s happening on the ground” is not itself a constitutional violation.
Another way to think about this is that at least two of Dorf’s precedents are crystal-clear examples of the famous adage that the Constitution is not a suicide pact. As he notes, it would be insane to say that Manitobans must live without the protections of provincial laws unless and until their parliament acts. Even a short delay could literally be deadly.
Similarly, if a prison-crowding ruling were to result in the immediate release of “randomly selected prisoners willy-nilly,” as Dorf puts it, that would surely lead to catastrophe. And although a sudden end to school segregation does not present the same type of public danger, our history shows that there truly are dangers inherent in desegregation efforts.
Interestingly, however, the criticisms of Brown II suggest that in fact there ought to be a limit on how long a court should allow a legislature to delay action. Brown II, in fact, might be its own best counter-argument.
Dreamers, in other words, could continue to do exactly what they are currently doing, and only the executive-versus-legislative distinction would determine whether we would call them citizens or “illegals.” Their continued presence in the US does not in itself offend the Constitution in the way that, for example, school segregation continues to do.
But given his supposed concern about the separation of powers, when issuing his order repealing DACA, Trump could have said, “Unless Congress takes action tomorrow, I will end this the day after tomorrow.” There is no reason why Congress cannot pass a simple, constitutionally required piece of legislation right away. And even if there are practical concerns that would require more than a few days for Congress to act, the larger point is that Trump has done nothing to justify anything close to a six-month timetable.
But what about the other prudential concerns? Even if Congress could act quickly, what if it does not do so? Is there a reason to think that Trump is saying, “I need the six months, because our deportation mechanisms need that much time to be put in motion”? Or perhaps he is saying, “These innocent Dreamers need six months to get their affairs in order before they are deported”?
Both of those arguments fall short, because the six-month delay has not created space for an orderly exit but has simply disrupted people’s lives and put everything on hold. We have no evidence that the federal government is better prepared for mass deportations today than it was in September, and Dreamers have not been securing employment and housing elsewhere. How could they, given that they have no obvious places to go and that Trump himself has told them that Congress will take care of it before they would need to leave?
The bottom line is that, as Judge Garaufis argued, the Trump people offered no reasons – legitimate or otherwise – for their choice to delay the end of DACA by six months. Even so, as Professor Dorf points out, it might be possible for the Administration to backfill its actions and proffer a legally defensible justification.
If they try to do so, however, Dorf’s examples demonstrate that the standard has to be higher than simply asking, “Does the Constitution allow delays in curing violations?” It surely does, but the reasons for those delays must have to do with what is happening (or could happen) in the real world.
Accordingly, if Trump’s people return to Judge Garaufis’s court and simply try to say, “We gave six months to allow everyone to prepare,” that should not be enough. They need to show why any but the most minimal delay was acceptable, and at the other end of the spectrum, why further delays would do unacceptable violence to constitutional principles.
Again, Trump could say something like this:
I never thought that Congress would not get to this within six months. But I didn’t realize how much time it would take to pass my big wonderful tax bill or to spend more money on the Pentagon. My bad. Congress should get to work on this, but I’m too smart to impose a timeline again. These American Dreamers should be allowed to stay here. At some point, I’m sure Congress will get around to getting this done. Now, does anyone want to hear again about my landslide victory in the Electoral College?
That Trump will not do that does not mean that he is not permitted to do so. He has revealed by his actions that deporting Dreamers is neither a practical necessity nor a constitutional priority. If anti-immigrant extremists pursue the case and a court ultimately orders him to end DACA, he can then respond as appropriate (just as Obama would have done).
In the meantime, we should be honest and understand that Trump is simply using the Dreamers as political hostages. It is a particularly cruel form of political theater, and both Trump and congressional Republicans have the power to stop it.