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11/11/2019

Josh Blackman on the DACA Case [Updated]
Michael Ramsey

At Volokh Conspiracy, Josh Blackman: DOJ finally identifies the "constitutional defects" in DACA.  From the beginning:

In a 2017 letter, Attorney General Sessions concluded that DACA suffered from "constitutional defects." Over the past two years, the Department of Justice has steadfastly refused to acknowledge what these "constitutional defects were."

In DHS v. Regents of the University of California, Ilya Shapiro and I submitted an amicus brief on behalf of the Cato Institute and Professor Jeremy Rabkin. We lamented the fact that DOJ has never explained what these "constitutional defects" were, but urged the DOJ to state its position:

The better understanding is that the reference to DACA's "constitutional defects" was framed in terms of the major questions and non-delegation doctrines, as Justice Gorsuch recognized in Gundy. But if there is any doubt about this important question, the government should be asked to represent its position about DACA's "constitutional defects."

DOJ finally opined on this question in its reply brief (pp. 20-21) ...

RELATED (I): Professor Blackman notes that his amicus brief is discussed in a recent Washington Post column by George Will.  An excerpt:

The Trump administration's main reason for rescinding DACA is thoroughly disreputable but entirely permissible — that DACA is bad policy. Another and sufficient reason, however, is that DACA was implemented in accordance with the noxious theory that presidents acquire new constitutional powers by engaging in practices that a lethargic Congress does not challenge. As Cato's brief says, "The executive branch does not need the judiciary's permission to cease enforcing a regulation it determines to be unconstitutional. . . . Courts should allow reversals of novel execution actions that expand presidential power."

RELATED (II): Andrew Pincus, an attorney on an amicus brief supporting the claimants, has a helpful post at Balkinization outlining the background.  But the post actually convinces me of the the opposite of what he intends.  If a President has a reasonable argument that a presidential policy is unconstitutional, it seems clear that the President should be able to discontinue that policy.  To probe whether the President really believes the policy is unconstitutional (as Pincus asks) appears beyond both the constitutional mandate and the institutional capacity of the judiciary.

The DACA case, DHS v. Regents of the University of California, will be argued on Tuesday.

UPDATE: Also at Volokh Conspiracy, Ilya Somin has a contrary view: Why DACA Is Legal.

Professor Somin may be right, but I think the correct question for the Court is not whether DACA is legal, but whether the Attorney General unreasonably concluded it was not legal.  That seems a much harder case to make.