Executive Authority: How Presidential Statements Could Undermine Both Sides In The Litigation Over DACA

President_Barack_Obamadonald_trump_president-elect_portrait_croppedBelow is my column in USA Today on the role that statements from both President Barack Obama and Donald Trump could feature greatly in the unfolding litigation over the rescinding of the DACA order.  Ironically, it will be the opposing sides relying on the respective statements from these presidents.

Here is the column.

For Justice Department lawyers, this week must have a maddening familiarity.

The lawyers are in court defending President Obama’s Deferred Action for Childhood Arrivals program. They are also looking at a challenge by New York Attorney General Eric Schneiderman and others to President Trump’s rescission of DACA.

Key to both cases is the doctrine of the separation of powers. Tuesday, the administration staked out the position that DACA was constitutionally flawed as a circumvention of the legislative branch. However, that position was less than 10 hours old when Trump posted a tweet that directly contradicted the legal position of his own administration. Trump suggested that he might reissue DACA or a similar program if Congress does not act — effectively same position as Obama.

It was an all-too-familiar position for the Justice Department. Earlier this year, presidential tweets and comments directly contradicted arguments being used to defend Trump’s immigration ban in court. Those tweets were then used by various courts in rulings against the administration.

However, there is a twist this time. The expected litigation over DACA’s rescission could feature not one but two presidents as witnesses against their own positions: Trump and Obama.

After Attorney General Jeff Sessions quoted from my prior work on the separation of powers in his announcement rescinding DACA, I have certainly heard from many angry people who were aghast that my work would support such a result. It does. As a Madisonian scholar, I believe strongly in clear lines of separation of powers and the need to restore legislative authority after years of unilateral presidential actions. I also happen to support protections for “dreamers,” whose parents brought them here illegally when they were young children. In the end, it was not the merits but the means behind Obama’s program that ran afoul of the Constitution. Regardless of how one feels about amnesty programs, Trump returned DACA to the place it should have remained: in Congress.

Sessions laid out that principled position in favor of the legislative process mandated by the Framers. Yet no sooner had the attorney general explained that position when the president tweeted, “Congress now has six months to legalize DACA (something the Obama administration was unable to do). If they can’t, I will revisit this issue!”

The tweet was widely interpreted to mean that Trump is prepared to do exactly what Sessions said was unconstitutionally done by the Obama administration: Issue an executive action to protect DACA immigrants.

It is hard to see how “revisit” does not mean “reissue.” If so, the tweet undermines the position of the administration in court over DACA and takes away constitutional high ground claimed by Sessions. In the pending litigation, plaintiffs can now argue that DACA is not really dead, and that the president was not serious about leaving it entirely to Congress.

Likewise, any challenge by Schneiderman and others can now cite the tweet as evidence that the separation of powers concerns were not the motivation for the president. Rather, they will argue that Trump, like Obama, has suggested that he could order the same relief if Congress does not yield to his demands.

The tweet also undermined the legislative strategy of the administration. The pressure to get Congress to act seemed to be working after Sessions’ announcement. Many Republicans saw the political costs of the termination of DACA as worse than the costs for passing some protection for these individuals. As soon as that pressure seemed to be motivating members toward action, the tweet reduced that pressure by suggesting that Trump would not allow the program to truly die.

Conversely, Schneiderman and the challengers have their own inconvenient presidential statements to contend with. Some expect challengers to bring a case under the Administrative Procedure Act as a “substantive” (or “legislative”) rule requiring a notice-and-comment period. Putting aside that the rule does not require such a process for “interpretative rules, general statements of policy, or rules of agency organization, procedure, or practice,” Schneiderman and his other challengers never went to court to challenge DACA itself on the same grounds. DACA notably did not go through notice or comment.

Finally, not only can the Justice Department argue that the procedural rule does not apply to a president as a non-agency, the memo creating DACA stated, “This memorandum confers no substantive right, immigration status or pathway to citizenship.”

Likewise, where Trump’s tweets and comments are likely, again, to feature prominently in litigation, Obama’s statements are likely to be equally problematic for challengers. Some challengers are suggesting that DACA may be permanent because of the “estoppel doctrine” — arguing that dreamers relied on the government promise that they could remain.

However, in his issuing of the DACA order, Obama expressly stated that it is “not a permanent fix. This is a temporary stopgap measure.” Obama also said he could not change federal immigration law through his executive orders.

Thus, Obama and his administration are on record undermining claims under both the procedural rule and estoppel. Ultimately, the challengers will be in the unenviable position of arguing that Trump’s rescinding DACA requires notice and comment when Obama’s implementation of DACA did not.

Moreover, challengers are suggesting that Obama had inherent presidential authority to bar the enforcement of federal law, but that Trump cannot use the same authority to enforce it. Finally, they will have to argue that people already in this country unlawfully have an enforceable promise despite Obama saying that he could not change the law or make any permanent promises.

The deepening uncertainty over presidential statements and the status of DACA only reinforces the wisdom of the Framers in forcing such major decisions into the legislative process. What we need is additional legislation, not proclamations. Otherwise, the upcoming litigation is going to get awfully confusing.

Jonathan Turley, the Shapiro Professor of Public Interest Law at George Washington University, is a member of USA TODAY’s Board of Contributors. Follow him on Twitter @JonathanTurley.

78 thoughts on “Executive Authority: How Presidential Statements Could Undermine Both Sides In The Litigation Over DACA”

  1. “Executive Authority: How Presidential Statements Could Undermine Both Sides In The Litigation Over DACA”
    ________________________________________________________________________________

    Correct me on the facts.

    DACA is AMNESTY.

    DACA was unconstitutional when Obama illegally imposed it on America.

    DACA cannot have “both sides” since it is illegal and unconstitutional.

    DACA is illegal and unconstitutional and illegal and unconstitutional “programs” cannot be litigated.

    DACA is NOTHING.

    DACA is an incoherent non sequitur.

    DACA is self-resolving, unconstitutional, impossible non-legislation which was illegally passed by the executive branch.

    DACA cannot exist.

    DACA does not exist.

  2. Don’t make us taxpayers pay for some else’s crotch fruit, go find & make those “Baby Daddys” pay for their current & past child support. If not collect the amount owed from the counties that these 25-35 year old Squtter Dreamer “Children” came from!

    Past time for another Prez Ike’s “Operation Wetback”!!! It took him & his team a little over a year to correct the illegal Squatter problem.

  3. Prof Turley,

    What in the hell is up with your thinking the last few years? Are you ok?

    ” I also happen to support protections for “dreamers,” whose parents brought them here illegally when they were young children. ”

    With you being a “noted” lawyer your use of language in recent years is appalling to me at times.

    The use of the word “dreamers” to make these people appear in a nicer light then they really are when the legal defintion calls for them to be called “Squatters”!!!!

    Blacks Law: What is SQUATTER?

    In American law. One who settles on another’s land, particularly on public lands, without a title. See O’Donnell v. Mclntyre, 16 Abb. N. C. (N. Y.) 84; Park- ersburg Industrial Co. v. Schultz, 43 W. Va. 470, 27 S. E. 255.

    http://thelawdictionary.org/squatter/

    The Prez, Congress, DOJ & the courts are “Employees” of us U.S. Citizens that are charged with representing our collective interest.

    Our govt has no more right to give away our U.S. assets to these “Illegal Squatters” then an employee of a Pizzeria giving away free pizza & beer to his friends. And in a court the Pizzeria owners lawyer would argue that his client is being “irreparably Harmed” as the employee & his friends continue steal to steal the owners property & other assets!

    “It is hard to see how “revisit” does not mean “reissue.” If so, the tweet undermines the position of the administration in court over DACA and takes away constitutional high ground claimed by Sessions. In the pending litigation, plaintiffs can now argue that DACA is not really dead, and that the president was not serious about leaving it entirely to Congress.”

    Turley, oh could it simple means exactly what Prz Trump said? That he plans to “revisit” AKA: take a 2nd look at the issue if congress is unable to deal with the issue.

    Please stop it you’re “Killing” me! LOL, oh Lord could it be the same word has different meanings depending upon the context in which used. Naw, revisit has to mean reissue because people in DC have lost their Ph’ing minds.

    1. There’s an old saying that a bumpkin like you can relate to: “if three people call it a horse, go buy a saddle.” The analogy is this; there are so many people against deporting the law-abiding persons who registered under DACA, that perhaps you might want to consider why so many respectable and responsible people think this way.

      This is to “why doesn’t Texas fall into the Gulf of Mexico” okie

      1. The analogy is this; there are so many people against deporting the law-abiding persons who registered under DACA, that perhaps you might want to consider why so many respectable and responsible people think this way.

        You seem to fancy we’ll regard them as ‘respectable’ and ‘responsible’ if you make an ex cathedra pronouncement to that effect.

  4. Pres. Trump was vague enough in his statement to not undercut the clear statement of Atty Gen Sessions.
    And Pres. Obama’s pre-DACA position was also stated clearly.

    Article I Section 8 speaks much louder than any public statement from a President. Neither Obama nor Trump has directly challenged the idea that Congress has the responsibility and final word on immigration policy.

    I’m sensing a gradual return of appreciation for proper process in government. We’ve been through a very partisan, unproductive period where process was pushed aside in hopes of getting results (e.g., ACA, SB 744, AHCA). We’ve seen this expediency grow into the worst kind of ad-hominem, tribalistic rejection of Civics 101. None of our major controversies are able to be solved absent agreement to defend process over results. The pendulum is swinging back in the direction of championing process, and having Immigration Policy decided by Congress is a dramatic example of that shift.

    Sen. Feinstein was the voice of reason this past weekend.

    1. …and “Crazy Abe” Lincoln was the voice of nullification by reason of his illegal denial of the natural and unalienable right to secession, his military occupation of a sovereign foreign country, his war by executive action, his unconstitutional suspension of Habeas Corpus, his unconstitutional imposition of a “proclamation” without constitutional authority, his illegal confiscation of private property among others and his successors’ forced imposition of improperly ratified, unconstitutional “Reconstruction Amendments” compelled under the duress of post-war military occupation.

  5. I don’t see why any tweets or comments about the law should have bearing on what the law means. The law exists so the comments that might need to be reviewed would be the comments made by those passing the law in case there is question regarding what was actually meant (that would generally be more pertinent with old law).

    Turley seems to be left of center and he admits having voted for Obama. He might present things differently than I would like, but I find his statements of law to generally be more abiding to the law than to his ideology. I find it disturbing when people diss a legal opinion that is merely concentrating on the law rather than politics. Justice Sotomayor in her public comments indicate that she judges things less on the law and more on outcomes which is not what a Supreme Court Justice should be doing.

  6. There won’t be a Wall and the influx of illegal immigrants will continue. The anti-immigration stance is a useful ploy to trick White voters into supporting Trump.

    1. Sorry, I’m a little smarter than that. What leads you to believe other people are any less critically able than yourself? Give me a break.

      I do think we should offer people a path to citizenship – with caveats. Learn English, take the citizenship test, pledge allegiance to the United States. If it meant this mess could go away, would they take advantage of the opportunity? I’d be willing to wager a lot of people would not. Many never *wanted* to be citizens in the truest sense to begin with. Note that I say many, not all, please.

      1. James

        The point is that most of the ‘dreamers’ speak English better than most ‘Americans’ born in the US. Most grew up with a fierce understanding that education and contribution to society are the keys to their future, unlike many Americans who were born to a free lunch. Most ‘dreamers’ make better Americans than a far too large percentage of those born in the US. The solution is to keep them here while their cases are reviewed and put those that contribute positively to the US, on a path to citizenship. Those that pose a threat, get a ticket out. Out of 800,000 it is not rocket science to eliminate those with professional degrees and associated jobs, perhaps a month; then those taking professional degrees at colleges and universities, a month; those with nothing but troubles with the law, a month; etc, etc. This is what the majority of Americans want, so what is there to lose but an alt right fan base. Trump can keep his alt right support by dissing Congress if it does the right thing, preach to the center, and even make a few leftist friends.

  7. President Trump’s revisit tweet seems to be a sort of Rorschach test; it means whatever one wants it to mean. As I understand DACA, it was issued as a temporary but open-ended order. That took Congress off the hook politically and this has been essentially on Trump’s To Do list. He’s now moved it on to the Legislative branch To Do list. Obama made the Executive branch own this and the Legislative branch now has 6 months to take ownership of it. If they fail then the Executive branch still owns it and Trump will have to revisit this. I can see Trump ramping up the tweets that Congress is once again failing the American people and those affected by DACA by not coming up with a permanent fix. He’ll make Congress own the outcome of this politically regardless of how this ends up.

  8. I’m not a lawyer, but . . . what if Presidents had a 5th amendment right not to testify against their own executive orders?

    Would that just make matters worse?

    1. What if Americans had the right to private property, free enterprise, actual equality based solely on merit and freedom from dictated and imposed governmental bias?

      Oops. There would be no artificial “Affirmative Action Privilege” and no artificial Americans.

      1. George, American private enterprise routinely employs people who entered The U. S. on temporary work-visas known as green cards. Before that there was a bracero agreement between The U. S. and Mexico that allowed Mexican workers into America.to serve the labor needs of private enterprise.

        How many of the beneficiaries of DACA had parents who overstayed their work-visas, George?

  9. What I do not understand is, WHY…..these DREAMERS….continued on..,being Illegals.! Why didn’t they do something about their status, at some point and time in their being HERE.??

    Why didn’t their parents do something, to allow themselves and their children to live in peace and contentment.? They arrived…..next step should have been….let’s sort this out.

    I am not a U.S. Citizen. But, I could not live with the pressure of being in any country, where I did not have Legal Status.

    1. There aren’t a lot of options for the Dreamers to change their status except to leave. Many were brought to America by parents seeking to find better economic conditions or escape tyranny at home. Many of the same reasons the original colonists (different than the original Americans) came. Many have at considerable risk come out and advocated for a change in immigration policy, mostly to no avail.

      The pressure of being in America without legal status may be less than the fear of Duarte’s regime, cartels, starvation, or religious persecution in their home countries.

    2. Generally, a foreign national cannot apply for legal permanent immigration status while residing in the U.S.
      The law is clear — you apply while in your home country awaiting an affirmative decision. That’s why most of the Dreamers and their parents failed to take affirmative steps to achieve legal status.

      I believe there is an exception for joining the military services, and I’m pretty sure tens of thousands of Dreamers took advantage of this program. Those ones earned Permanent Legal Resident status through military service, and are no longer Dreamers.

  10. Shameful. To think that an American would infer that the ACLU was some sort of “enemy of the State.” For your information, the ACLU defends your right to be a complete racist, hateful, small-minded, ignorant, nazi-wanna-be. You’re welcome. Wear it well.

    1. Actually, the ACLU is and always has been a lawfare outfit to promote a portfolio of political views. Wm. Donohue, who wrote the book on their history had this to say a generation ago about the position of civil liberties in their activity: “It’s like ATT and telegraphic equipment: still in the product catalogue, but not where the action is. At the same time, Alan Dershowitz was saying that there was a civil libertarian element in the ACLU and an element composed of ‘political leftists’ who had no interest in civil liberties. Nat Hentoff was writing columns for the Village Voice about how otiose the ACLU was when police and courts were abusing people they saw as a real threat (anti-abortion protesters).

      The ACLU is just one very well-financed generator of humbug, and merits no respect from decent people.

        1. FishWings – they wouldn’t anymore. They have decided that they will not take any conservative causes.

          1. Not sure what they putatively ‘helped’ North with. Ollie North was accused of a bevy of federal crimes, none of which implicated the exercise of his civil liberties. He’s a sympathetic figure to some degree, but he was almost certainly guilty of some crimes, just not the grandstanding 23 count indictment which Lawrence Walsh secured, of which only 3 counts survived when the trial judge and the jury were done with it. (IMO, 85% of whatever was specified in Mr. Sullivan’s retainer agreement should have been charged to the special prosecutor’s office).

            (He was guilty, I think of accepting unlawful gratuities and lying about it).

      1. Wrong answer. Google Argumentum Ad Verecundium for the utter weakness of your screed. After all, I know what color of sheet you prefer.

        This is to “try again” susie

          1. DSS, you are absolutely correct even though today sometimes the ACLU follows its basis for existence. The ACLU board and donors became more influential in deciding what cases to take placing its mission statement in the toilet. Mark M. is too shallow to know any better.

  11. How about this, regardless of what either of these two “said or tweeted” we just follow what the Constitution and the law reads. Because the Constitution and the law was not enforced in the first place it has brought us to where we are today. If the Constitution and law is not enforced in the future we will return to this same location. Let the so called dreamers who’s parents have given Americans this nightmare apply for citizenship like so many before them.

    1. Not if Schumer has anything to do with it unless you mean what will benefit the liberal socialist progressives as the right thing.

      1. The right thing is a path to citizenship, irrespective of what group that might eventually benefit.

        I recommend that you study the Book of Matthew.

          1. Notice how Ken and David B Benson constantly compliment each other. That’s because they’re the same female sockpuppet. She has others, but these are the 2 prominent ones.

            1. There actually is an emeritus faculty member at one of the Washington state institutions (late of the information science faculty). I don’t think you’ve called this one correctly, unless Ken is the septuagenarian Dr. Benson’s junior-high alter-ego.

        1. Ken, the Democrats can’t bring DACA without Republican defectors; some of whom are angling for preliminary funding for Trump’s border-wall boondoggle. Let Trump do the art of that deal with his own party. They’re in no position to negotiate with Democrats on that count.

    1. To sum it up. Obama issues an illegal order – nothing is done
      It’s taken at face value which means nothing as it has no face value
      The matter is sent before the legislative branch who have a six month time period to fix it or ignore it.
      A lot of pressure is put them to do something for once.

      As usual a bunch of A CLU and self serving politicians get in the way.

      Without checking I’m assuming some law suits have been filed which only serve to chew up the six month extension to the two years etc.

      Given the history of the Congress and the judicial system the Supreme Court wil hear the matter about a year from now.

      Six months too late.

      So what good did the ham’n’eggers do ?

      What good will the Congress have done

      While the ink in the pen on the President’s desk dries out.

      More finger pointing and mean while a great excuse to groan and moan at the heavy work load and of course that means another Congressional vacation.

      1. i didn’t finish A CLU-less nor identify the Congressionals as the Democrat Socialist Progressive obstructionests and their right wing of the left RINO’s now hiding behind a false cloak of Moderates which they are not.

        But President Trump did try to put gas on the fire and get them doing something…..but then they are the asbestos congress.

    2. Why isn’t Mexico ever responsible for anything?

      Why isn’t Mexico criticized for putting “kids” in limbo?

      Because Obama began “fundamentally transforming” Americans out of Ameirca by importing Mexicans and democrat voters.

      It’s time to limit immigration. It’s time for “Affirmative Action Immigration” which allows only Europeans to immigrate to correct the imbalanced “minority immigration” of the past 50 years. It’s time to import republican voters.

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