DACA And The Costs Of Constitutional Short Sellers

Below is my column in the Hill newspaper on the decision of President Donald Trump to rescind DACA and send the issue back to Congress with a six-month grace period.  While I support some accommodation for those brought here as young children and hope that Congress will pass new legislation, I still view DACA as a flagrantly legislative act by President Barack Obama carried out through his unilateral executive authority.

President Trump’s expected announcement that he is terminating the Deferred Action for Childhood Arrivals (DACA) program has met with widespread criticism over the potential cost to roughly 800,000 children of undocumented parents. While I agree with the same concern over the status of these individuals, I do not agree with the same criticism of sending DACA back to Congress. DACA was unilaterally ordered by President Obama after Congress refused to approve the program.

Some of us criticized the action as a circumvention of the legislative branch that undermined our system of the separation of powers. But because they liked the result, Democratic members yielded their institutional power to the White House and helped create an unchecked presidency. With Trump using the same authority to pursue his own policies, Democratic leaders now want to radically expand the powers of the judiciary to block an uber presidency of their own making. They have become constitutional short sellers who dump core principles as soon as they raise political costs.

New York Attorney General Eric Schneiderman and Gov. Andrew Cuomo (D-N.Y.) announced that they would challenge Trump’s decision in federal court. While they declined to give details of this extraordinary challenge, they would presumably be asking a court to say that Trump could not use the same power to rescind DACA that Obama used to create it. Since the power is the same, what remains is the merits of the policy, something courts have long avoided under the political question doctrine. They would have to say that undocumented individuals can be allowed to stay but not ordered to leave by executive order.

In the market, short sellers will sell a security in the belief that its value is declining, allowing them to buy it back later at a lower price for a profit. Constitutional short selling follows the same logic, but instead of undermining a financial asset, they undermine a constitutional system. Democrats want to oppose Trump, willing to yield power to the courts, as they did for the last eight years with regard to the executive branch. The constitutional short seller hopes that by dumping inconvenient principles, they will be able later to regain control of the system. The problem is that, unlike the markets, the constitutional system is not particularly elastic. Such changes can fundamentally alter our government.

The temptation to become a short seller is irresistible for politicians who often find it difficult to see beyond the next election. However, Schneiderman is the highest-ranking lawyer in the state of New York. Rather than articulate a constitutional principle that would negate Trump’s use of the same power used (with his support) by Obama, Schneiderman simply said, “President Trump’s decision to end the DACA program would be cruel, gratuitous and devastating to tens of thousands of New Yorkers, and I will sue to protect them.”

During the previous administration, I testified repeatedly about the dangers of the unilateral actions taken by Obama (whom I voted for in 2008). Two years ago, I even wrote a column warning that Democrats should consider the prospect of these same powers under health care and immigration being wielded by a President Trump rather than a President Obama. Yet, in one of the strangest demonstrations in history, Democrats rapturously applauded when Obama said that he would simply circumvent their branch because Congress did not yield to his demands for DACA and other measures.

From a constitutional perspective, it looked like a mosh pit of self-loathing members, politicians eager to be declared a functional non-entity in our tripartite (now bipartite) system. Unable to yield more authority to the executive branch, these politicians would now inflate the power of the courts to check a president. Imagine if a federal court gave Schneiderman what he wants. A federal judge could simply declare that an executive order is “gratuitous” or too “devastating” to be allowed. What would have been the reaction if a federal judge declared DACA to be gratuitous or cruel to those who are awaiting entry into the country legally? We would have uber judges to match our uber president.

I am admittedly a Madisonian scholar and a constitutional formalist. I believe strongly in the role of Congress in legislation and clear lines of separation between the branches. The separation of powers protects us from the concentration of authority in the hands of a single president or a few jurists. James Madison saw Congress as a way to force majoritarian compromise out of our factional divisions. Sometimes when the country is deeply divided, less gets done until we can reach a consensus. It sometimes takes time, which is a finite and dwindling commodity for presidents. The process is not pretty or easy, but it has one thing to recommend it: We are still here. It is the balance of the three branches that has brought us stability through economic to social to political upheavals.

Trump’s decision will return this question to where it should have remained: Congress. Presidents do not have the option to go it alone in our system. Obama failed to pass DACA in Congress, and he was left with only two choices. He had to either compromise or change Congress. Sometimes when the country is politically divided, less gets done until we can reach a consensus. However, that consensus is found in the legislative process, not through presidential or judicial proclamations.

Where Obama used this authority to circumvent Congress on DACA, Trump is using it to return DACA to Congress. After failing to pass this program earlier, members may now be able to succeed by reaching a compromise with their Republican colleagues. Regardless of the outcome, however, the importance of re-establishing an equal legislative branch is paramount for our system and our future. As for Schneiderman, he should rethink his challenge before more constitutional short sales turn a great Constitution into a worthless penny stock.

Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. You can follow him on Twitter @JonathanTurley.