We The People

Can the Trump Administration End DACA?

November 14, 2019

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Two years ago, the Trump administration decided to end Deferred Action for Childhood Arrivals (DACA) — a policy enacted under President Obama that deferred the deportation of undocumented people brought to the United States as children. Earlier this week, the Supreme Court heard challenges to that decision and was faced with the questions: can the Court even review the decision to end DACA, since it was an action taken by the Department of Homeland Security, an executive branch agency? If it can, was the decision to rescind DACA legal? And is DACA itself legal and constitutional? Brianne Gorod of the Constitutional Accountability Center and Josh Blackman of the South Texas College of Law Houston join host Jeffrey Rosen to dive into the questions.

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PARTICIPANTS

Josh Blackman is an Associate Professor of Law at the South Texas College of Law Houston and an adjunct scholar at the Cato Institute. He has twice testified before the House Judiciary Committee on the constitutionality of executive action on immigration and health care. Josh is the founder and President of the Harlan Institute, and blogs at JoshBlackman.com.

Brianne Gorod is Chief Counsel at the Constitutional Accountability Center. She was previously a Supreme Court and appellate lawyer in private practice, and served as an Attorney-Adviser in the Office of Legal Counsel at the Department of Justice. She also clerked for Justice Stephen Breyer on the Supreme Court.


Additional Resources


This episode was engineered by Kevin Kilbourne with editing by Jackie McDermott and Greg Scheckler and produced by Jackie McDermott. Research was provided by Lana Ulrich, Frank Cone, and Jackie McDermott.

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TRANSCRIPT

This transcript may not be in its final form, accuracy may vary, and it may be updated or revised in the future.

Jeffrey Rosen: [00:00:00] I'm Jeffrey Rosen, the President and CEO of the National Constitution Center, and welcome to We the People, a weekly show of constitutional debate. The National Constitution Center is a nonpartisan nonprofit chartered by Congress to increase awareness and understanding of the Constitution among the American people. This week, the Supreme Court heard challenges to the Trump administration's decision to end the Deferred Action for Childhood Arrivals program or DACA. DACA was enacted by the Obama administration to defer the deportation of undocumented people brought to the US as children, now the court will decide whether President Trump's decision to rescind DACA almost two years ago was lawful and possibly unconstitutional, or whether it even has the authority to review the question to begin with.

Joining us to dive into this crucially important question and to unpack the complicated legal and constitutional issues at the core of the case are two of America's leading Supreme Court commentators and two great friends of the We The People podcast, Josh Blackmun, is associate professor of law at the South Texas College of Law Houston and an adjunct scholar at the Cato Institute. He has testified before the House Judiciary committee and is the founder and president of the Heartland Institute and he blogs at joshblackman.com. Josh, it is great to have you back on the show.

Josh Blackman: [00:01:28] Thanks, Jeff.

Jeffrey Rosen: [00:01:29] And Brianne Gerrard is Chief Counsel at the constitutional accountability center. She has served as Attorney advisor in the Office of Legal Counsel at the Department of Justice and clerk for justice Stephen Briar. Brianne, it's great to have you back on the show.

Brianne Gorod: [00:01:43] Thanks for having me.

Jeffrey Rosen: [00:01:44] Okay. So I want our listeners to understand the complicated facts and then to unpack these legal issues. First, is the case reviewable by the court? Second is it illegal? Third, is it unconstitutional? And fourth, was the administration's decision to rescind the policy consistent with the law? So, Josh, let's begin with the facts as Professor Kingsfield said, "There are two programs here, DACA and DAPA, which was the Deferred Action for parents." Can you as concisely as possible tell us how this DACA case got to the Supreme Court?

Josh Blackman: [00:02:23] Jeff, this case is many years in the making. The story begins in 2012. Congress considered a piece of legislation known as the DREAM Act. This law would have provided a pathway to citizenship for certainly young immigrants who came to this country as minors who have gone to school, stayed out of trouble, and, and lived upstanding lives. This bill is not ... Did not have support in the Senate and it failed. After a DACA fail- ... I'm sorry. After the DREAM Act failed in the Senate the Obama administration announced a policy known as DACA, D-A-C-A, Deferred Action for Childhood Arrivals. DACA was not amnesty, it did not give citizenship, instead it granted what was known as lawful presence to the aliens. What does this mean? That the dreamers would be deprioritized from deportation and would also receive certain federal benefits for example, Social Security they could legally work and, and a few other benefits as well.

The DACA policy was challenged in a few courts but not meaningfully, it was pretty popular across the board. And that policy has been in effect now for the better part of seven years. Fast forward to 2014 Congress considering the comprehensive immigration reform bill, the the Gang of Eight bill, if you will. This bill actually passed the Senate, but in the house, the speaker John Boehner did not bring it up for a vote. He didn't bring it for a vote so it never went anywhere, the legislation died. After that happened, President Obama announced that he would take executive action.

The second policy was known as DAPA, D-A-P-A, so you have DACA with the C, DAPA with the P. DAPA stood for Deferred Action for Parents of Americans and lawful permanent residents. This policy would have granted deferred action to the parents of US citizens, as well as the parents of lawful permanent residents that is green card holders. While DACA was quite popular, DAPA was not considered popular and it was challenged in court. Texas and other conservative states sued for a injunction and they were able to get it blocked by the district court. That, that injunction was affirmed by the Fifth Circuit Court of Appeals. In 2016, the case was appealed to the Supreme Court. However, at that time, the court was short handed because of Justice Scalia's untimely death. As a result, the court split four to four simply affirming the lower court but not reash- reaching the merits. At that juncture, DAPA was more or less enjoined but DACA remained in effect.

Fast forward to 2017, President Trump is elected, he announced that he will suspend DAPA, which was no big deal, it never went to effect, but DACA remained in effect. Texas once again threatened to sue the Trump administration for continuing to enforce DACA. In response the Trump administration said, "We are going to wind down DACA and suspend the policy because we decided that it was illegal based on the Fifth Circuit decision." Almost immediately after President Trump announced he would suspend DACA the administration was sued across the country in various courts, and various courts ruled that the suspension memorandum was not lawful. That is the, the memo said, we are killing this policy because it's illegal, and the court said, well, you're wrong, the policy is perfectly legal. Therefore your justification was incorrect, was arbitrary and capricious, and we can halt the rescission.

And so the supreme court now considering whether the memoranda that justify the rescission provided a, a, a reasonable and valid basis to end the policy. I think that's everything Jeff. You got everything in one, in one, in one breath.

Jeffrey Rosen: [00:05:52] Beautifully done. Thank you so much for that. Our best of concision and [laugh] and and ... but Brianne there's always more to say and my follow up question on the, on the facts is what exactly did the memorandum rescinding DACA say? It said it was both illegal and unconstitutional, what previous memoranda did it rely on, and what did the lower courts that held DACA to be illegal hold? What was the basis for their reasoning that DACA was illegal?

Brianne Gorod: [00:06:26] Sure. So, you know, when the administration decided to terminate DACA the first memo explaining the decision actually came from the Attorney General Jeff Sessions, who was then attorney general, who wrote to advise that the Department of Homeland Security should, and these were his words, "Should rescind the June 15th 2012 DHS memorandum entitled, exercising prosecutorial discretion with respect to individuals who came to United States as children." what the Attorney General said was that DACA wasn't his view, effectuated by the previous administration through executive action without proper statutory authority and with no established end date.

And so in his view, the DACA policy suffered from legal and constitutional defects. He in fact said that they were the same legal and constitutional defects that the courts recognized as to DAPA. And that's really important because it provides the background against which DHS issued its memo of formally terminating the program. In that memo DHS explained that taking into consideration the Supreme Court and the Fifth Circuit's rulings in the DAPA case and the letter from Attorney General Sessions they concluded that the program should be terminated.

And it's Again, really important the reasons that the Attorney General and DHS gave when it decided to terminate the program because, you know, it's a bedrock principle of administrative law that when an agency acts the courts review that action based on the explanation the agency gave at the time that it acted. And so because the administration said that it was acting ... it was terminating the program because it concluded that DACA was unlawful, that decision to terminate the program, whether it itself was legal, really turns on the question of DACA's legality because if the courts conclude that DACA was legal, then their conclusion that they had to do it, that the law bound their hands that it, it forced them to terminate it was itself unlawful under the federal law that governs agency action.

And so that's why, in the lower part cases that have been considering this question, you know, the, the fundamental question that they were all asking is whether the DACA program, was itself lawful. Whether When the Obama administration put it in place it was a permissible exercise of prosecutorial discretion. You know, Josh started the story with the DREAM Act but in fact, you know, the story in some sense begins long before the DREAM Act, because for decades, Congress has conferred discretion on the executive branch to determine how best to enforce our nation's immigration laws over decades, administration's of both parties have put in place these kinds of deferred action policies. And when the Obama administration put in place DACA it was acting against that background.

So as the lower courts have considered this, they've asked the question whether DACA was lawful, and almost uniformly they concluded that it was in fact lawful and the administration's decision to terminate it on the ground that it wasn't was itself unlawful.

Jeffrey Rosen: [00:09:23] Okay, we've distinguished between DACA and DAPA, as Josh put it pungently and we understand that DACA covers about almost 800,000 people, DAPA covers far more up to 4.5 million, almost half of the unauthorized population of the US. And we're going to jump in for our first question into the arguments for and against DACA's being illegal. Josh you believe that DACA is not legal so focusing on the legal and statutory arguments rather than the constitutional ones, what are the arguments that DACA is illegal and how did they fare at the supreme court?

Josh Blackman: [00:10:05] Well I filed an amicus brief on behalf of the Cato Institute in a DACA case, and I filed a nearly identical brief couple years ago on behalf of the Cato Institute in the DAPA case, my position has been largely consistent. I think DACA is a very good policy I think the DREAM Act should have been enacted, and I, I truly feel for the situation of the dreamers. These are people who should have their status permanently adjusted by statute although not by executive action.

The answer to this question over why DACA is legal relies on a fairly esoteric but a pretty important element of constitutional law what's known as a non delegation doctrine. The non delegation doctrine suggests that Congress cannot give the president the power to make laws. And everyone more or less agrees in the abstract that, that is bad. The difficult part becomes, at what point has Congress given too much authority? Our brief takes the position that immigration law gives the president a lot of power but it's somewhat bounded, right. It's somewhat limited and I'll give you, I'll give you an example. There is a statute that says, the Attorney General can give work authorization to certain people on deferred action. It's there and, and, and we can't deny that it's there.

When that statute was first enacted, and when the regulations were enacted pursuant to it, members of Congress asked, how many people do you expect to gain work authorization through this regulation? The answer given was, such a small number that's not worth statistically recording. It's just, it's a tiny number because generally the issue of giving work authorization to immigrants is fairly controversial, it's an issue which Congress has a lot to say about.

DAPA and DACA relied on these fairly mundane provisions, which are designed to help a very small number of people to grant work authorization to up to a, a, a million, perhaps 1.5 million individuals. And we argue that the laws that Congress enacted cannot support such a broad delegation of authority. That is, if Congress intended to give the President this much power, the statute itself will be unconstitutional. The better way is to avoid that constitutional question and say that Congress would resolve these major questions itself. This is what's called a major questions doctrine. As a result, the best way of reading these various statutes is that Congress did not give the authorities to the president and it goes beyond what Congress intended. And because the statue of authority ... I'm sorry, the statutory authority is lacking, the, the executive branch cannot implement this policy.

Now, I don't know how much appetite there is for this argument at the court, I didn't hear many questions along these lines yesterday but this is the argument that we advanced, Texas advanced a similar Arctic argument a couple years ago, and the Fifth Circuit didn't cite my brief but they definitely read it in their decision from 2015.  That, that is that Congress has not delegated the precise authority used to grant the work authorization air.

Just one point to clarify Texas and myself, we've never debated the issue of prioritization. That is the President can prioritize some people from removal over others. The debates always been about the ancillary benefits like work authorization, and that's where the key is. In other words, if the President just said, we will not remove you, I think it's a much tougher question, but it's, we will not remove you plus give you these benefits, that's where the statutory conflict comes from.

Jeffrey Rosen: [00:13:19] All right, Brianne, if I understand Joshua's argument, first, it was quite influential, it was the basis for the fifth circuits argument. And the non delegation doctrine, dear We the People listeners, you'll remember from our podcast on the Gundy cases hotly contested before the court today, perhaps five justices, at least four believe that this non delegation doctrine, which has been dormant since the 1930s should be revived and the Congress' has power to delegate important decisions to the executive should be restricted. The, the liberal justice has strongly resist that. Justice Kagan said, "This would mean the end of government." so, so this is a cutting edge question. My question to you Brianne is, is, as Josh said, they didn't see much appetite for confronting that directly at the court.

Justice Sotomayor at the argument said that she didn't understand how this policy was illegal. She said that the administration has frequently adopted class based discretionary relief policies and she and Chief Justice Roberts debated how many people have been covered by these policies in the past. He said it was more like 50,000 people and she said it was more like 1.5 million. So Brianne, my question is, to, to what degree does the legality turn on how many people were affected, 800,000 under DACA as opposed to maybe 4.5 million under DARPA. And more broadly what's your response to Josh's argument that DACA is an unconstitutional delegation of authority from Congress and the President and for that reason, is illegal and unconstitutional?

Brianne Gorod: [00:14:48] I thought one of the most interesting aspects of the courts argument was how little time the Trump administration's lawyer spent making the case that DACA is unlawful. And, you know, I think that's because it's actually a really difficult argument to make. You know, Congress, as I mentioned earlier, has long conferred discretion on the executive branch to implement the nation's immigration laws. The Supreme Court has in the past recognized that deferred action is, they've said a regular practice that the executive branch engages in for humanitarian reasons or simply for its own convenience. And Congress, over the years, has repeatedly taken affirmative steps that demonstrate its ratification of and its reliance on these exercises of executive discretion. Congress has, for example, passed legislation that presumes that the executive will continue to grant deferred action or that expressly directs the executive to continue doing so.

And there's not been any suggestion in the past that the legality of these programs should turn on the exact number of individuals who are affected. But even if other than, you know, when the Fifth Circuit considered the DAPA case a couple of years ago, but even if you consider that, you know, I think the lawyer for California at the argument, you made a very persuasive case that there are past instances that are on par with DACA and he pointed to the family fairness program which was a program that was put in place under the Reagan administration and allowed INA district directors to choose not to remove some children and spouses of immigrants whose status had changed under a recent change in the nation's immigration laws.

You know, as he told the court the executive branch at the time told Congress that, that program would apply to up to 40% of the undocumented population at the time. And I think, against that background, the Obama administration's decision to put in place DACA seems entirely in keeping with what administrations have done in the past and what Congress has approved in the past as a valid exercise of the significant disruption that Congress has given to the executive branch. And I think it was telling at the argument that Justice Kagan asked Noel Francisco, the Solicitor General, the lawyer for the Trump administration to identify, you know, what particular provision of the INA he was saying that DACA violated. And, you know, he acknowledged that they were not saying that there was a specific provision that it conflicts with, you know, they were pointing simply to a lack of authority.

But when you look at the immigration laws, you know, Congress has authorized the Secretary of Homeland Security to establish regulations, issue instructions, perform other acts he deems necessary for carrying out his authority under the INA. And Congress has also directed the Secretary to establish national immigration enforcement policies and priorities. And all DACA does is effectuate those immigration policies and priorities you know, making clear that those who arrived in this country as children who have not broken the law are not pri- are not priorities for removal and should be allowed to work legally while they're here.

Jeffrey Rosen: [00:17:51] Josh one more beat on the legal and constitutional argument is just to confirm, in your view, the, the DACA program is illegal because it's unconstitutional, there's not a separate statutory violation. And then my question is did you detect any appetite for ruling DACA illegal at the supreme court?

Josh Blackman: [00:18:11] The constitutional provision at play is what's known as a take care clause. That clause has got a lot of attention the last couple years because of President Trump, but even before the election of 2016 Cato and I we, we briefed the take care clause. We argued that the decision to grant deferred action to such a large class of people amounted to a suspension or abdication to immigration laws. There was zero briefing this issue, I don't think it will even come up. Indeed, this is important. The Attorney General Session's letter, which rea- ... which argued that DACA was illegal referenced constitutional defects. They did not explain what those defects were until we prodded them.

In our brief, we had this one sentence where we said, hey, government, what's the constitutional defect? And the SG in his reply brief said, "Aha, the, the constitutional defect refers to an excess delegation of power, which is the non delegation doctrine." the only way the government argues persuasively that this, that this policy is illegal is premise to the non delegation doctrine. But here's a secret Jeff, they don't want argue that. Generally the government does not want to argue that there's this doctrine which gives court the powers to set aside federal laws. They're very hesitant. And when Justice Kagan posed that questions in Bill Francisco I have the same reaction Brianne did Francisco kind of bobbed and weaved the question. I really hoped that the court could have appointed Texas has an amicus, they requested it, they were denied because I think Texas could have done a lot better job arguing that this law is unconstitutional.

But ultimately, I don't know that the court has an appetite to rule on the legality of DACA. I think the farmer likely path is something that won't be satisfying to almost anyone. The court will simply hold that the decision to cancel DACA is not one that's reviewed by the courts. What does that mean? Well, then the policy might be shut down in six months or so. We have an election coming up real soon. So it's very likely that in January of 2021, whoever the president is gets to decide the fate of DACA. They can keep it or they can get rid of it.

In the event that let's say president Elizabeth Warren decides to reinstitute DACA then Texas will come right back and sue them. So we're in the same exact place we're in today. I would much rather have a merit ruling yes or no in this sort of punt based on whether the courts can review it.

Jeffrey Rosen: [00:20:18] Since you introduced this question of non review ability, I will ask Brianne to illuminate the rather wonky and complicated arguments about review ability and do you agree with Josh or not that the court may find the case to be non reviewable?

Josh Blackman: [00:20:35] Yeah. So this is one of the big questions that was discussed at the argument this week, which is whether this termination of DACA is something the courts can even look at. And, you know, I think that there are really strong arguments that the termination of DACA is something that is reviewable. You know, there's a strong presumption that when administrative agencies, when federal agencies act that Congress intends the courts to be able to review that action. There's this narrow exception for agency actions that are quote committed to agency discretion, by law. But here and you know, Justice Ginsburg actually pointed out the irony in the administration's argument, it's really difficult to understand how this could be an action committed to agency discretion by law, when the agency has said it wasn't acting as an exercise of discretion. It was saying that it thought the law required it to take this action.

And you know, when courts consider whether agency action is reviewable or not, one thing that they often consider is whether there's a historical tradition of these sorts of agency actions being reviewed by the courts. And there's simply no historical tradition of allowing executive agencies to do what they did here, to say that their hands were tied by the law, that they didn't have the legal authority to continue DACA. And they say that that decision is free from review by the branch of government that's tasked with declaring what the law is, the courts.

So, you know, when courts consider this question, there are a couple things they look at, which is one, whether there's any law to apply? Whether there's any meaningful standard against what's the judge the agency's exercise discretion? And you know, here because the question, the one that we've been discussing already, you know, whether DACA is lawful, is the quintessential sort of question that the courts are well suited to engage in. I, I just don't think that there is a, a strong argument that the action here isn't reviewable.

And, you know, there was definitely a lot of discussion about it at the court you know, there was certainly a couple of justices who were pushing back on the argument that this is reviewable. They wanted to know why it is, they wanted to understand what the limiting principle would be. But at the end of the day, you know, it's always dangerous to predict what the court will do. My guess is that the court will conclude that this is reviewable, but, but I don't think ... It wouldn't surprise me if there is a little bit of disagreement with the court on that question.

Jeffrey Rosen: [00:22:47] Josh, I hear Brianne say that the standard for whether or not a agency decision is reviewable is whether or not it's committed to agency discretion by law. And Brianne says that because this was ultimately not a discretionary policy decision but a judgment about DACA's illegality, then that doesn't meet that non review ability exception. Do you agree or disagree? And do you believe that the court will find the case to be reviewable or not?

Josh Blackman: [00:23:15] You know, this litigation is basically like Groundhog Day. Everything is the same as it was in 2016 but in reverse. In 2016, the defenders of DACA argued that President Obama's decision to enact DACA was not subject to review and made the same groups now arguing that the decision to cancel it is subject review. And the flip side today those who are challenging the rescission argue that it is subject review and everything's basically flipped. I think everything is subject to review. I think in 2016 DACA was subject to review, and I think in 20-, 2019, I think the recession is subject to review. So I think it does affect tangible benefits. But the fact that it does effect review means that it is not merely discretionary policy that it has substantive weight that cannot be supported by the statute.

The reason that why I suggested that the court may punt on this sort of disability factor is because the court, we know, when I say the court, I mean, John Roberts, the court doesn't like getting involved in messy situations and it'll be all too easy for the court to just duck this issue and say, all right, you guys figure it out. But this, this punt would not be very effective for a simple reason the Dreamers are not going anywhere, they're here. And even if you say that the policy is not subject to review, if the election comes out for the Democratic side, we'll be right back in court having to decide the legality. So I, I think it's a mistake to let this issue linger any longer.

Just as Gorsuch had one line where he said, that there's a cloud of uncertainty that's been around for years, why make this cloud stretch any longer? And I, I hope that the court finds its either rule yes or no, thumbs up or thumbs down. Don't give us a shrug emoticon, just, just, just decide the case. [laugh]

Jeffrey Rosen: [00:24:57] Thank you for that. And I'm going to look up the shrug emo- emoticon, which I haven't seen, but it, it, it would be a good motto for the avoidance doctrines before the Supreme Court. So that brings us back to the question of the legality of the rescission. And Brianne is it right that, that turns on whether or not the agency policy was reasonable and adequately defended?

Ju- Justice Ginsburg pressed general Francisco at the beginning of the argument, and he conceded we're making two arguments. One, One is that we, you know, had to rescind the policy because we thought it was illegal and the other was, we had discretion to do so. Tell us about his argument that the decision was justified by the Attorney General's memoranda and the skepticism of the liberal justices who believe that the bare bones Attorney General's memoranda did not adequately balance interest and therefore we was not sufficient to defend the program on to law.

Brianne Gorod: [00:25:54] Yeah. I mean, there were a couple of interesting things that were going on at the argument. You know, one was the question of, what documents the court should be considering when it determines what the agency's rationale, what its explanation was. You know, it was interesting, you know, Francisco did not, I think, want to rely purely on the Attorney General's memo or the initial DHS memo, because it is, it is just really, really difficult to see in those documents, any indication that this decision was based on anything other than the administration's conclusion that the law required them to terminate the policy. So instead, he kept trying to draw the court's attention to a subsequent DHS memo that was put out in June of 2018 during the course of litigation over the termination of DACA.

And the court and the Solicitor General, this memo makes clear that decisions, decision to terminate this was based not only on its conclusion that the policy was unlawful but also on policy grounds. And there was a lot of pushback on that from the courts more liberal justices, you know, both because Justice Sotomayor said, she said, "I thought basic administrative law is you look at what's first given to you, not what you add later." And, you know, I think she's entirely right about that. And so, you know, this attempt to say, no, no, no, don't look at the reason that we gave initially, but look at this later elaboration on that reasoning would just be totally at odds with the way judicial review of administrative action normally works.

But also, you know, on its face, as they pointed out, this subsequent memo continues to rely on views about the policy's illegality, it continues to be subject to Attorney General Sessions conclusion the DHS should rescind the policy because he concluded that it was unlawful. And, you know, I think one of the other justices pointed out that conclusion really infects the entire analysis. And then there's a lot of questions as well about whether DHS sufficiently considered the really substantial reliance interests that are in this case. There are, of course, are the, you know, over 700,000 individuals who have been granted deferred action and have been relying on that as just as Briare pow- powerfully pointed out, you know, there are ambitious briefs filed in supportive DACA on behalf of cities and municipalities, on behalf of businesses, on behalf of, you know, all, all number of different types of organizations. I'm talking about the ways in which they have also relied on the DACA policy.

Even Justice Gorsuch, you know, a couple of times talked about the strong reliance interests at issue in the case. And all you see in that subsequent DHS memo is, you know, basically a single sentence saying that the assertive realize interests don't outweigh the questionable locality of the DACA policy. So there again, you see them coming back to this conclusion that the DACA policy was unlawful and that was why it needed to be terminated.

So I think it'll be really interesting as we look to the court's decision, you know, to see where they looked to understand what the basis for DHS decision was, and then how persuasive they find the reasoning that DHS gave on how considered they concluded that it was in deciding to terminate this really, really important policy.

Jeffrey Rosen: [00:29:06] Josh, what was Attorney General Francisco's response to the liberal justices who said, "Hey, the Attorney General's memo was bare bones and there's no real way in the reliance interests in any way was subsequent and we're supposed to look at the memo at the time the decision was made. And do you think the conservative justices will buy the response?

Josh Blackman: [00:29:27] Well, there are two separate issues right. If the policy is illegal, then it has to stop, full stop, right. Reliance interests are for certain important and that may go to whether you, you take away people currently in DACA. But the policy wasn't about canceling any, any, any, any policies, it was about denying people going forward to having it relied upon it. So to the extent that we're, we're seeing the policies illegal, the reliance issue doesn't play much of a, a, a ... doesn't play much of a factor. But to the extent that the government also relied on policy issues, their reliance becomes important.

And there were several questions from the bench about how, how little discussion went into revoking [inaudible 00:31:26] to canceling the memorandum that so many people have come to perhaps rely on for future grants of DACA.

Let me make the reviewable points a little bit differently. Had the court reviewed this case earlier, reliance interest would have been less. Every day that goes by where this policy is in effect, more and more people come to rely on DACA. And as more and more people come to rely on the policy, it becomes harder and harder to unravel. So to the extent the court wants to take a minimalist approach and simply duck the issue till later, it actually makes it effectively impossible to ever justify it. One of the, one of the Justice asked the lawyer for the DACA kids, you know, "What could you say to, to justify taking away these people's lives?" Right. "What interests could possibly overwhelm it?" And he kind of dodged the question. I don't think there is one. It's a pretty compelling policy questions why it favored DACA. But if we're actually going to balance this based on policy considerations solely the reliance interests would almost certainly cut the other way. So, so really this makes a wise much turns on whether DACA is itself legal or not.

Jeffrey Rosen: [00:31:11] Very interesting. Bria- Brianne, do you agree that if the conservative justice has decided not to take up the illegality on constitutionality of DACA, it will be difficult to say that the policy justifications for rescinding it were adequate under law?

Brianne Gorod: [00:31:29] Yeah, I think in some ways, it's difficult for the justice to avoid the legality question because, you know, as we've been talking about, that really was the basis that the administration gave for terminating the policy. And as I've said, it's, you know, bedrock administrative law that you look to the reasons that the agency gave when it acted. And that's for really good reasons. You know, it ensures accountability, it ensures transparency, and, you know, as the lawyer for California said when he first got up and started speaking to the court, you know, the administration could have taken responsibility for a discretionary decision. A decision to, as Justice Sotomayor said at the argument destroy lives, but that's not what they did. They ended the policy based on the ground that doctor was unlawful. And so I think that's a question the court, you know, really does need to grapple with.

You know, if they decide not to, you know, I think it is really difficult to look at the memoranda that DHS put out and come to the conclusion that they, you know, really meaningfully grappled with the reliance interests that are at play here and with the consequences of this policy. You know, as Justice Sotomayor said, you know, I mentioned this a moment ago, she pointed this is a policy decision that can destroy lives. It's incredibly consequential because you know, we are talking about individuals who were brought to ... who arrived in this country as children, who know no other country who have been productive members of our communities. And it is difficult to see in the administration's memos any appreciation for that.

And again, part of that is because when you read them, it really seems like they are saying this is something that they were forced to do because the law tied their hand, which just brings me back to their first point, you know, that was the reason that they gave and I think that's the question the court really needs to grapple with when it decides the case.

Jeffrey Rosen: [00:33:20] Josh, I'm, I'm, I'm glad that we've ventilated the issues to this point and as I understand the discussion so far, if the courts willing to bite it, you're strong claim that DACA is unconstitutional and illegal, that's a, that's a clear position. But thaT would represent a advance of the law given the fact that this revival of the non delegation doctrine is nascent, it's, it, it hasn't really ... it's not yet up and running. On the other hand, if it relies on the stated reasons as a matter of policy, then they seem to be kind of weak. So, take us into the mind of justice Gorsuch. I, I raise him because he was the author of the Gundy decision wanting to revive the non delegation doctrine. But at the same time with the oral argument, he was very sensitive to the reliance interest and he also wondered what the purpose would be of sending it back to the lower courts for perhaps years more review. So he was, he was balancing these competing impulses sort of put, put us in his head and talk through how he might resolve these, these competing impulses.

Brianne Gorod: [00:34:22] Oh, to be in Justice Gorsuch's mind, that'd be a fun place to be. Well, let's start with a few different points. The non delegation doctrine manifests itself in many Different ways. Gorsuch, Gorsuch explained in Gundy that one of the ways we have the court pleasing delegations authority is through the major questions doctrine. What is the major questions doctrine? We've seen this in several cases, where the court says, we don't think Congress would have intended to give the executive such a broad authority, therefore, we will read this authority more narrowly to avoid any constitutional difficulties.

The non de- ... The non delegation doctrine operates alongside major questions doctrine. To use Justice Scalia's words, Congress does not hide an elephant in a mouse hole, right. If Congress wants to give this huge power to grant a million aliens work authorization, they will do so expressly not through just general delegation about prioritizing resources and these sort of a, a, a mundane statutes. So it'd be fairly easy for the court to say, we don't think that these statutes were designed to grant so much authority, so we read them more narrowly, and the DACA is not lawful. In our brief rec ado walks through this step inverse.

But Gorsuch is also aware that there are costs to this. I think the distinction though is that the reliance interests would factor to a policy discussion. The reliance interests don't really matter for a legal discussion. If DACA is illegal, you have to enjoin it full stop, it doesn't matter people like an illegal policy, you have to stop it. It's not, [inaudible 00:37:20] you say, well, you know, like if it's against the law, that doesn't work. So if Gorsuch comes down the side of the law, I think that's where his vote is.

But you know, Jeff, this isn't about Gorsuch, it's about Chief Justice Roberts, he gets to decide everything now. You know, for many years it was Justice Kennedy, before there was Justice O'Connor, before that was just as Powell. We always have one of these people. And no- now it's Chief Justice Roberts who gets to make ... decide the most important questions and his impulse is always to decide less, you know that better than perhaps anyone else in the world. And he will probably decide less here and leave this issue alone.

Jeffrey Rosen: [00:36:20] Brianne take us then into Chief Justice Robert' head. And if he is inclined to decide less as, as, as, Josh argues he may hesitate to hold the DACA is illegal and unconstitutional under the non delegation doctrine, what would a more narrow alternative look like and as help us balance with him the, the, the various possibilities?

Brianne Gorod: [00:36:42] Yeah, you know, I mean, one thing that is, as you know, you know, the Chief Justice cares tremendously about is the institutional legitimacy of the court. You know, he wants the justice to be seen as, you know, judges, not just politicians in robes. And, you know, I think this is going to be an incredibly important case for him and for the court because, you know, what the Trump administration has been essentially asking the court to do is to do its dirty work for it. You know, I think DACA has been an enormously successful policy it's a very popular policy, and I think that's, you know, part of the reason why the President didn't want to say that he was ending it, [laugh] as a matter of policy, but wanted to say that the law tied his hands.

And, you know, over the course of the past few years, we've sometimes seen, you know, the Chief Justice you know, cast his vote for this administration and the, and the Muslim ban case, for example, and sometimes come out the other way as with last year census case the case about whether to add a citizenship question to the census. You know, if the chief justice, you know, wanted to reach a more narrow result, you know, one way that he could do something I think some of the justices were thinking about yesterday was to say, oh, we can look at these other reasons that DHS gave subsequent to its announcement of the policy.

But I think the real problem for him is that, that is just so out of keeping with the way the courts normally work. It's just so fundamentally odds with the way agency review normally operates and is supposed to operate and supposed to operate for good reason. You know, I think the Chief Justice you know, understands that the reasons why courts review agency actions based on the reasons that the agency gave is because it promotes, you know, incredibly important transparency and accountability principles. And, you know, allowing this administration to say, oh, the law required us to end this policy when it, you know, made that announcement in a very public way and and not really own its policy decision to terminate it which is be totally at odds with the way our government is supposed to work.

And so, you know, I think, for the chief justice you know, he's really going to be thinking about, you know, these legal questions and the way, you know, judicial review is supposed to work in this sort of context and what the implications for his decision could be for the way the court is viewed.

Jeffrey Rosen: [00:39:00] Josh, one more beat on what you think Chief Justice Roberts might hit on as a narrower compromise If he's not inclined to hold with you that DACA is unconstitutional and illegal, the options we've discussed so far are first, holding that it's non reviewable second holding that the subsequent justifications for rescinding it as a policy matter are adequate might he buy either of those two decisions, and is there a third or fourth narrower alternative that he might be able to hit on?

Josh Blackman: [00:39:29] There's, there's the census options which I think Brianne alluded to earlier, where Trump can say something like, well, we think that he can do this but the rationales given are not adequate, so let's send it back down to the lower court and let that stew there for a little bit, right. You know, the census case when Chief Justice Roberts voted to remand it, he had a pretty good inclination that they couldn't get the get the issues together enough time because the census forms have to be printed. So it was almost like a, a, a punt that wasn't going to be returned. It was a kickback, if you will or touch back. Here if Robert remands it, we have an election coming up. If Trump is reelected, then maybe in a year or two this case come back to the court with another hundred thousand people in DACA, what makes even harder to, to, to wind down. And if Elizabeth Warren or someone else is elected at that juncture, she can just reanimate DACA and then we're back litigating whether DACA is legal.

So whether it's a real interest sociability or a ruling on we need more evidence, we're back in court, this issue will continue lingering with the dreamers having this cloud over them. So every attempt to have a, a, a judicial minimalist approach will simply prolong this sort of uncertainty.

Jeffrey Rosen: [00:40:36] Brianne one, one, one last beat on channeling Roberts, you know, giv- giv- given, given that reality that the uncertainty would be prolonged, a concern that several of the justices voiced do you think that the chief will vote either to hold it, that it's not justiciable or that we need more evidence and come back to us in a few years?

Brianne Gorod: [00:40:54] I mean, I think it's, you know, entirely possible that the court could say that, you know, the reason they gave was not right and they need to, you know, go back and look at it again. And in some ways, you know, then it's back to the Trump administration to decide what they want to do next. You know, I think there was some sense, from some of the justices that, oh, what's the point in sending it back, you know, we know what the administration will do, we have these subsequent memorandum that they, that they've issued. But I think, you know, it's important to remember that we don't really know what the Trump administration will do. You know, there was a, a reason why they decided to say that their hands were tied in the first place.

And, you know, what I don't think the court should do is ignore the way, you know, administrative review normally works because if the court were to say here, we don't have to look at the reason that DHS gave when it initially acted, we can look at the subsequent region ... reasons you know, that would have major implications not only for DACA and you know, its future but for the way agency review happens more broadly and, and that would be something that I think would be a really troubling result of this case.

Jeffrey Rosen: [00:41:54] Well, it is time for closing arguments in this fascinating discussion. And Josh, the first one is to you, tell us why you believe that the Trump administration's decision to rescind DACA was consistent with the laws and the Constitution.

Josh Blackman: [00:42:11] Well thank you again to Jeff for having me and also thank you to Brianne, it's always good to spar with you and have a reasonable discourse. I think the Trump administration has had his hands tied. The way it's litigated this case is based on the usual confluence of events. At the time when Trump wanted to end DACA, the acting Homeland Security director, and it was Alaine Duke refused to go along with President Trump. She said, "I am bound by the attorney general, who said is illegal, but I will not offer any policy justifications because I like DACA." in other words, DOJ walked into this case with his hands tied behind it's back, which makes it a very difficult fight.

But ultimately, I think that the administration prevailed on a fairly simple idea, if President Obama was able to create DACA through executive action without going through the courts, then President Trump realize do the same. I don't know that the Trump administration's position is entirely coherent, I think they've made some arguments that are strange, Brianne mentioned a few of them. I think they've also withheld arguments that are much stronger like the ones I'm advancing. So they win this one it will not be because of the strong argumentation but because the law generally grants discretion to make these sorts of decisions to the, to the President. But I, I, I think the, the SG, the Solicitor General, had his hands tied behind his back based on the how the facts were given to him.

Jeffrey Rosen: [00:43:28] Brianne, the last word is to you tell our We the People listeners why you believe that the Trump administration's decision to rescind DACA was not consistent with the law?

Brianne Gorod: [00:43:38] Sure. Well, thanks again Jeff for having me. And thanks to Josh for this great conversation. You know, I think it's just important to think about DACA in context. In the context of, you know, decades and decades of Congress making the considered decision that given that immigration is a complex field, a dynamic field it makes sense for the executive branch to have discretion to determine how best to impleme- implement the nation's immigration laws. And of course, you know, that's particularly important in this context because, you know, Congress hasn't even appropriated sufficient resources to allow the removal of you know, all undocumented individuals. And so the executive necessarily has to make discretionary decisions about whose removal to prioritize and who's not.

And I think the Obama administration's decision to put in place the DACA policy was an entirely permissible exercise of the discretion that the executive branch has long enjoyed. It was in keeping with, you know, past practices of administration's of both major political parties. It was in keeping with the types of policies that Congress has consistently indicated its affirmative approval of.

And, you know, I think what's really important here is to look at the reasons that the Trump administration gave for terminating policy. You know, if you look at its initial memoranda, the Attorney General's memoranda, the initial DHS memorandum, I think there's no question that they were acting because they viewed this policy as unlawful. It's just a sort of more powerfully said at the argument yesterday, if you look at their memos they're saying that this is about the law it's not about their policy choices.

And given that the question for the court is, whether DACA was lawful or not, and given the significant discretion, the executive branch has under immigration law given the way that discretion has been exercised in the past DACA is plainly lawful and therefore the Trump administration can't terminate it on the ground that it wasn't.

Jeffrey Rosen: [00:45:43] Thank you so much Josh Blackmun and Brianne Garrard for a really illuminating unpacking of the complicated legal statutory and administrative law questions at the heart of the DACA case. I now understand all of them much better as a result of your contributions and I know our listeners will too. Josh, Brianne, thank you so much for joining.

Josh Blackman: [00:46:05] Thank you Jeff.

Brianne Gorod: [00:46:07] Thanks.

Jeffrey Rosen: [00:46:08] Today's show was engineered by Kevin Kilbourne and produced by Jackie McDermott. Research was provided by Lana O'Rick and the constitutional content team. Homework of the week dear we the people friends, there's a good SCOTUSblog symposium on the DACA case with contributions by our two champions today Josh Blackmun and Brianne Gerrard. Check it out at SCOTUSblog.com. Please rate, review and subscribe to We the People on Apple podcasts and recommend the show to friends, colleagues or anywhere everywhere who's hungry to understand not only the DACA case, but all naughty constitutional and legal questions.

And always remember that the National Constitution Center is a private nonprofit. We rely on the generosity, passion, engagement and devotion to lifelong learning of people like you from across the country who are inspired by our nonpartisan mission of constitutional education and debate. You can support the mission by becoming a member at constitutioncenter.org/membership, or give a donation of any amount to support our work including this podcast at constitutioncenter.org/donate. On behalf of the National Constitution Center, I'm Jeffrey Rosen.

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