Patterico's Pontifications

11/12/2019

Supreme Court Takes Up DACA Program Today

Filed under: General — Dana @ 9:11 am



[guest post by Dana]

The Supreme Court will be hearing arguments today on whether the Trump administration can end the Obama-era DACA program. Under Obama’s executive action, the approximately 660,000 so-called Dreamers, who were brought here illegally by their parents, have been protected from deportation and been given authorization to work legally in the US through the program. A program that President Trump has promised to end:

President Trump ripped the Obama-era Deferred Action for Childhood Arrivals (DACA) program Tuesday morning as the policy was set to come before the Supreme Court — while dangling the possibility of a deal with Congress to protect so-called Dreamers if the court rules his way.

The court is scheduled to hear oral arguments over the Trump administration’s plan to end the protections DACA afforded to immigrants who were brought into the country illegally when they were children.

Trump implied that the beneficiaries of the DACA program may not all be deserving of the protection, which then-President Barack Obama put in place via executive order. At the same time, the president vowed that if the Supreme Court allows him to end the program, he and Congress will make a deal to allow DACA recipients to remain in the U.S.

“Many of the people in DACA, no longer very young, are far from ‘angels,’” Trump tweeted. “Some are very tough, hardened criminals. President Obama said he had no legal right to sign order, but would anyway. If Supreme Court remedies with overturn, a deal will be made with Dems for them to stay!”

[Ed. On one hand the President claims that some of the Dreamers are “hardened criminals,” and yet he also says that, if things don’t go his way with regard to the Supreme Court, he would be willing to make a deal with the Democrats for them to stay. Wut??]

Unsurprisingly, Mexico has urged the Supreme Court to stop the DACA decision, saying that “Mexican nationals have replied upon the commitments made by the US government in relationship to DACA”.

(Cross-posted at The Jury Talks Back.)

–Dana

UPDATE BY PATTERICO: This is a no-brainer. Whatever you think of DACA — I am conflicted by it but would probably on balance support it if done properly through a vote in Congress — it’s unthinkable to believe Obama can do it by fiat but Trump can’t undo it by fiat.

I predict a 5-4 decision in favor of Trump. Yes, even Roberts will vote in Trump’s favor.

68 Responses to “Supreme Court Takes Up DACA Program Today”

  1. Good morning.

    Dana (cb74ca)

  2. Trump tweet…. “Many of the people in DACA, no longer very young, are far from “angels.” Some are very tough, hardened criminals”

    “Many”. He has abused that word long enough. It’s about time people call him on it. “many people say”, “many of the people”. When he says “many”, he is lying. Same for “some” people say.

    noel (f22371)

  3. Can you imagine looking a kid in the face. One that has been here as long as they can remember. Some don’t even speak a foreign language. And they face deportation? Cold. That’s cold.

    noel (f22371)

  4. DACA requirements….. “have NOT been convicted of a felony offense, a significant misdemeanor, or more than three misdemeanors and do not pose a threat to national security or public safety.”

    This President is an embarrassment.

    noel (f22371)

  5. The criminal traitor Trump has been talking out of both sides of his mouth about DACA since day one. Literally. He tried to hand it off to Congress when the GOP controlled both houses but it was too hot a political potato. His butt gerbils in the lower courts went about it half-assed too, but it was going to end up in the Supreme Court either way. I am curious if it will be an ARA-based non-decision like the census question.

    nk (dbc370)

  6. Can you imagine looking a kid in the face. One that has been here as long as they can remember. Some don’t even speak a foreign language. And they face deportation? Cold. That’s cold.

    noel (f22371) — 11/12/2019 @ 9:34 am

    I agree 100%.

    But it doesn’t matter. Obama didn’t have the authority to do this. He said as much when he did it. Honestly I think Obama should have been impeached over this as an abuse of power. But he wasn’t.

    Undoing DACA is a crap policy and legally necessary.

    Maybe this will force congress to address the problem and find a balanced and humane solution. I hope they do. Seems like there should be some guidelines around age when you came here, length of stay, language proficiency, behavior since you came here etc. that could be agreed to.

    Time123 (b87ded)

  7. There are two parts to this.

    One is the deferral of deportation, which could be attributed to discretion although there is that nagging “faithful execution” annoyance. If he cannot impound money, he certainly cannot ignore a large class of lawbreakers. Nor is one president’s discretion binding on the next.

    The other is the work permits. This was wholly unlawful on Obama’s part. The law said he could not do this, and he did. No “discretion” extends to positive acts such as issuing green cards.

    I could see a court allowing the first to continue, but I cannot see them requiring the president to break a law because the last buy did. If they do, it REALLY makes all these impeachment arguments silly because it would be setting the Presidency above the law.

    Kevin M (19357e)

  8. Trust Trump to miss the entire point of his own case. They could all be nuns and priests and it wouldn’t matter. If they WERE gang-bangers or other felons, he could deport them either way this goes.

    Kevin M (19357e)

  9. Honestly I think Obama should have been impeached over this as an abuse of power.

    Which is why impeaching Trump for lesser infractions won’t fly. Impeaching him for being a fool, a boor, a cretin and an all-around disgrace, OTOH, would.

    Kevin M (19357e)

  10. The problem with DACA, or any other presidential waiver of law, is that it makes Congress’ job of compromise difficult. It is impossible to create a bill with parts for all sides when the President can just ignore every part the other side “won.”

    Kevin M (19357e)

  11. Kevin, Two things

    First, I think this tweet from trump is intended to communicate to his base. So this is what he wants his base to think, and it’s what he wants his base to feel; scared and dependent on him for safety.

    second I disagree with this

    If they do, it REALLY makes all these impeachment arguments silly because it would be setting the Presidency above the law.

    The fact that previous congress didn’t impeach of a given abuse of power doesn’t mean that no congress can ever impeach over abuse of power again.

    DACA was an area where both the left and the right were happy not to have to take a position. Neither wanted to upset the extremists in their coalition with a compromise. The left doesn’t want to take on the ‘open border‘ group and the right doesn’t want to take on the ‘we dislike brown ppl” group. Both sides also have ppl that act as if any compromise is an act of betrayal.

    Obviously not every member of the group agrees with the most extreme position.

    Time123 (dba73f)

  12. I assumed that Trump’s comment about if the court remedies with overturn was referring to the court overturning DACA – he’s saying if he wins, don’t worry that everybody’s going to be deported, he’s just going to use the threat of deporting them all as a bargaining chip to get a deal out of Congress. It doesn’t make much sense to say that if he loses he’ll make a deal with Congress – if he loses he won’t have any leverage with Congress. (Not that the lack of making any sense is presumptively evidence that Trump must mean something other than what he said.)

    But I do agree that Obama knew full well Congress had refused to legislate the DACA deal and just took it upon himself to legislate with his pen and his phone. And many critics of the obstructionist Republican Congress applauded him for doing so. If Congress won’t pass the laws the President wants, why then, how else are these laws going to get passed? Trump tried that with the wall funding and rightfully was smacked down for it and these same people applauded that, so it clearly isn’t the principle of the thing.

    Jerryskids (702a61)

  13. People like this have always been deported.
    Traditionally, the New York Times does a big long story on what a tragedy it is when a white guy, born in Germany and brought back by his father, has to be deported.
    It stinks but so does criminal activity.
    As Ted Cruz says, “When you break the law bad things happen.”

    I have as much sympathy as anyone, if not more. But they have to go back.

    Ingot9455 (7ff01c)

  14. Trump:

    Many of the people in DACA, no longer very young, are far from “angels.” Some are very tough, hardened criminals.

    DACA doesn’t apply to hardened criminals. doesn’t even apply to not so hardened criminals. And there’s not many of them. ;ss till at it eith he Illeal immigrant = criminal idea? Now you see lying like this could be more legitimate grounds for impeachment, but the Democrats won’t touch it. But I am sure it is motivating a lot of this impeachment fervor. I don’t know how things are going to get better if Democratic politicians can’t voice their chief complaint against Donald Trump and talk about everything else, including things that are not valid or true. Only the newspapers will criticize Trump on immigration, and in the newspapers you can also read columns saying how Democrats need to understand how Trump voters feel on immigration or the bad effects of immigration although they never say that about integration or fair housing laws, where it is more applicable..

    Trump, in his, or Stephen Miller’s, zeal to do anything he can to reduce immigration, legal and illegal, is raising the application fee to extend DACA status from an already high $495 to $795, and the naturalization application fee from an already incredible $725 to $1,170.

    For someone wishing to adjust status based on a family connection, the whole thing for all the applications will go to $2.750 and they even plan to assess a fee for asking for political asylum. These high fees started in previous administrations and now they’re just going up. He also wants to abolish all fee waivers. (after all if someone needs a fee waiver, then they’re liable to become a public charge, no? although I think he public charge rle on;y applies to new immigrants, not naturalization.

    Source: New York Daily News: https://www.nydailynews.com/news/national/ny-allan-wernick-immigration-column-20191112-4e5qltxi6jbbhmrx3pip3vuojm-story.html

    President Obama said he had no legal right to sign order, but would anyway.

    True, but courts have found a way around that.

    If Supreme Court remedies with overturn, a deal will be made with Dems for them to stay!

    Actually it won’t.

    The Democrats are not disposed to trade anything for it, except maybe sending for a wall that doesn’t cover any new territory, and even that will be a hard sell, and Trump has wrecked any deal in the past by trying to get the Democrats to reduce future legal immigration and other things.

    Sammy Finkelman (a69e24)

  15. 15 * Errata: On line 2 of my first comment it should go:

    He’s still at it with the Illegal immigrant = criminal idea?

    Sammy Finkelman (a69e24)

  16. 6. Time123 (b87ded) — 11/12/2019 @ 9:52 am

    . I hope they do. Seems like there should be some guidelines around age when you came here, length of stay, language proficiency, behavior since you came here etc. that could be agreed to.

    Will it, or will it not apply to those who will be brought here as children in the future?

    If yes, they will be accused of being for open borders, unless you are in favor of a wall, no catch and release etc, which will supposedly reduce the number of future cases to zero. If no, what’s the principle involved here and why shouldn’t this be done again later anyway?

    I think the Democrats are going to shoot for a permanent rolling amnesty, also known as a statute of limitations.

    Sammy Finkelman (a69e24)

  17. Be careful what you wish for! The corporate establishment clintonistas are barely hanging on to power in the democratic party now ( thanks to older black women voters ) A defeat for daca terrorizing these kids will finish radicalizing the democratic party alowing the AOC/sanders wing to dominate. In the short term a radicalized democrat party may help trump in 2020 ( unlikely because of changing demographics ) This will make an AOC presidency very likely in 2024 and you al will be on the way to the re-education camps!

    asset (4c1849)

  18. Yeah, Trump is ALWAYS wrong. BTW, Had Yeb! or Hillary been elected we would’ve had amnesty for all 20 million illegals, plus open borders, and using chain migration an un-limted supply of immigrants legal and illegal for the next 20 years. Think of it, all of America would’ve become just like California! I’m sure the Never-Trumpers would love that. BTW, notice Hugh Hewitt and all the “Moderate Republican” rarely talks about the R Party in the California? That’s because it doesn’t really exist anymore. Coming attractions for Texas and the USA!

    rcocean (1a839e)

  19. The fact that previous congress didn’t impeach of a given abuse of power doesn’t mean that no congress can ever impeach over abuse of power again.

    They didn’t impeach over far grosser abuses, such as illegal wars (Kosovo, Libya), wiretapping (see Snowden), Obamacare’s supplemental payments (massive unapproved spending), or conspiring with Putin for “after the election”, to name a few.

    That a PHONE CALL would be enough only says that one is finding the crime to fit the man. As I have said ad nauseum impeach him for the disgrace that he is, not some trumped-up charge. The Founders did not view impeachment as requiring a criminal charge.

    Kevin M (19357e)

  20. First, I think this tweet from trump is intended to communicate to his base.

    To the degree that his base are racist morons, I agree. I don’t think that’s a sizable fraction of his base, but I could be wrong.

    Kevin M (19357e)

  21. Traditionally, the New York Times does a big long story on what a tragedy it is when a white guy, born in Germany and brought back by his father, has to be deported.

    In the recent case of that sort, the guy is lucky he wasn’t executed first.

    Kevin M (19357e)

  22. I see that Ann Coulter is done with Trump. Why? Because he indicated that he would negotiate with the Dems to let some of the DACA kids stay. She wants all those bea, ah, Mexicans gone.

    https://www.mediaite.com/politics/ann-coulter-gives-up-daca-kids-can-stay-trump-must-go/

    Kevin M (19357e)

  23. BTW, what the F happened to Ted Olsen? Once a very conservative lawyer, he’s morphed into William Kunstler.

    Kevin M (19357e)

  24. “They” have already turned on Jr. and are beefing with Turning Point, similarly to how the Oath Keepers were cast aside as boomer nostalgiacs. In their eyes would Haley i/o Pence be another final straw? http://www.vox.com/policy-and-politics/2019/11/11/20948317/alt-right-donald-trump-jr-conservative-tpusa-yaf-racism-antisemitism

    urbanleftbehind (41fa3c)

  25. To the degree that his base are racist morons, I agree. I don’t think that’s a sizable fraction of his base, but I could be wrong.

    Kevin M

    Racism is the norm. That’s the one thing I think the left understands (Though racism among the left is also the norm). I love people but people also suck quite a lot.

    Dustin (d42b09)

  26. Reading the transcript, the government is arguing that they have a perfect right to begin enforcing a valid law and that decision is nonreviewable. They also believe that DACA was illegal, but they say that simply having reason to believe it was illegal is sufficient to justify their discretionary action.

    THe other side says, well, maybe, but they didn’t give a good enough reason and we want to churn this through the courts for at least the balance of this administration’s term. OK, they don’t quite put it that way, but that’s their argument, accompanied by some obfuscation of the government’s argument.

    Kevin M (19357e)

  27. 19. rcocean (1a839e) — 11/12/2019 @ 2:19 pm

    BTW, notice Hugh Hewitt and all the “Moderate Republican” rarely talks about the R Party in the California? That’s because it doesn’t really exist anymore. Coming attractions for Texas and the USA!

    California actually now has an election system very friendly toward people who belong to nether party, but campaign fiance laws maybe or the advantage of a pre-existing party prevent the arising of alternatives.

    The Republican Party was pretty dead in the 1930s and pretty dead in the south from the 1880s to the 1950s.

    Sammy Finkelman (a69e24)

  28. The CA GOP has had problems because the national party’s social conservatism is absolutely a non-starter in CA. The state party has tried to address that, but the Trump wing of the party has injected immigration issues on top of that and CA is 40% Hispanic, and the voting portion of that lags by only 18 years.

    At least that’s the problems they vace, but the state party has created more of their own. Not only do they have an internal Trump/#neverTrump fight, but they seem unable to get any message out at a time when the state Democrats are completely farking up.

    The state GOP has incredible opportunities with issues like traffic, housing, traffic, water, traffic, electric utilities and traffic. And they seem to be asleep at the switch.

    Kevin M (19357e)

  29. The other is the work permits. This was wholly unlawful on Obama’s part. The law said he could not do this, and he did. No “discretion” extends to positive acts such as issuing green cards.

    The law says nothing of the sort.

    Work permits for immigrants subject to deferred were authorized in a regulation published May 1, 1987:

    PART 274a-CONTROL OF EMPLOYMENT OF ALIENS
    Subpart B-Employment Authorization
    274a.12 Classes of aliens authorized to accept employment.
    (c ) Aliens who must apply for employment outhorization
    (14) An alien who has been granted deferred action, an act of administrative convenience to the government which gives some cases lower priority, if the alien establishes an economic necessity for employment;

    The Reagan administration’s regulation is on page 302 of the linked pdf document, and page 16228 of the volume 52 of the Federal Register. This regulation was on the books for almost a quarter century before Obama, and he did not change it.

    Dave (38959f)

  30. Fine or prosecute employers who hire them; arrest all illegals aliens and deport them.

    What is so hard about this?

    Yeah. Right.

    Call me a “Dreamer.”

    DCSCA (797bc0)

  31. California actually now has an election system very friendly toward people who belong to nether party, but campaign fiance laws maybe or the advantage of a pre-existing party prevent the arising of alternatives.

    Sure. That’s why we got Jerry Brown for 8 years, followed by Newsome. and will have D Senators forever. And the D’s have a 2/3 majority in the legislature.

    rcocean (1a839e)

  32. “The CA GOP has had problems because the national party’s social conservatism is absolutely a non-starter in CA. The state party has tried to address that, but the Trump wing of the party has injected immigration issues on top of that and CA is 40% Hispanic, and the voting portion of that lags by only 18 years.”

    About the same number of people voted for Trump in California as voted for him in Texas. As a reward, they got their taxes raised.

    Davethulhu (fab944)

  33. BTW, what the F happened to Ted Olsen? Once a very conservative lawyer, he’s morphed into William Kunstler.

    How conservative was Olsen? He served in the Reagan administration for 4 years in a somewhat low level, then came back and was solicitor General under Bush until 2004. He was primarily motivated during the Bush years by the War on Terror, since his wife was killed on 9-11. In any case, the Solicitor General, argues the cases he’s given. He’s like a Prosecutor, he fights for “His client” whether he personally believes in it or not.

    rcocean (1a839e)

  34. Plus he’s 79, and like many old men, is swayed by those around him. No doubt his wife is liberal-left and he’s just followed her lead. I can remember Goldwater went way Left, before he went senile.

    rcocean (1a839e)

  35. Tense correction needed (“is liberal-left”), or did Olsen remarry?

    urbanleftbehind (41fa3c)

  36. The California GOP stopped nominating Reagan Conservatives for Governor or Senator 24 years ago. All their wishy-washy moderate candidates lost, except for Arnold, who wasn’t even a Republican. Just a moderate Independent who voted for Obama and Hillary. And Moderate Pete Wilson – who supported Prop 187 and got re-elected Governor over the opposition of Jack Kemp, Hugh Hewitt, and William Bennett, who called him a racist.

    In 2018, the Senate General election Race was between 2 Democrats. The last R US Senator was Pete Wilson elected in 1988.

    rcocean (1a839e)

  37. #37 I’m not Google. Go look it up.

    rcocean (1a839e)

  38. William Bennett called Wilson a racist? Virtues guy is as openly contemptuous of Hispanics as our own DCSCA most days. That’s #2 on the Google to-do list.

    urbanleftbehind (41fa3c)

  39. 4 Mrs. Olsens…2 con (1st, 3rd 911 vic), 2 lib (2nd and 4th current), weird.

    urbanleftbehind (41fa3c)

  40. Kevin M @28:

    The other side says, well, maybe, but they didn’t give a good enough reason and we want to churn this through the courts for at least the balance of this administration’s term. OK, they don’t quite put it that way,

    They maybe even did, r at least the lawyer representing the states did, although reading more carefully, I think he says that the Trump Administration might do something different, if given a second chance. On the grounds that now somebody else is Secretary of Homeland Security and (Trump himself actually) has expressed broad sympathy for this population:

    MR. MONGAN: I think that there is a very substantial meaning to a remand in this case, Your Honor. We don’t truly know what the agency would do if confronted with a discretionary choice. If they knew that DACA were lawful, there’s a new Secretary, and the administration has expressed broad sympathy for this population, and they very well might continue the policy or stop short of wholesale termination.

    They didn’t want to extend this issue to any other thing or at least the lawyer for te private respondents didn’t.

    JUSTICE GORSUCH: Don’t — don’t other

    MR. OlSON: — specifically —

    JUSTICE GORSUCH: — people rely on the attorney general guidance memos and documents? There’s an entire industry in a lot of states involving marijuana that would argue they’re relying on memos issued by the attorney general that we will not enforce marijuana laws, for example. Do they now have a right to —

    MR. OLSON: No, I think that is completely different. They are not invited to participate into a program, to reveal the business that they’re in, to come forward, to take advantage —

    JUSTICE GORSUCH: Well, they —

    MR. OLSON: — of benefits —

    JUSTICE GORSUCH: — have a lot of economic interests at stake that, I think, under Fox and — what we heard about earlier from Justice Breyer, they would say our economic interests are very real, billions of dollars are at stake, we’ve relied on the attorney general’s guidance memos.

    MR. OLSON: But there’s — but there — but — and I just like would like to quote this one paragraph — or one sentence from the Heckler versus Chaney decision itself. “When an agency does act to enforce, the action itself provides a focus for judicial review because it imposes the coercive power of the government…

    Gorsuch I think is asking a hypothetical. What if a future Attorney General decided to enforce the federal marijuana laws where it was legal within a state??

    Sammy Finkelman (a69e24)

  41. What if a future Attorney General decided to enforce the federal marijuana laws where it was legal within a state??

    Sammy Finkelman (a69e24) — 11/12/2019 @ 4:35 pm

    I know he’s rhetorical, but the dual-sovereign doctrine would allow the Feds to enforce marijuana laws, even if the state legalized it.

    whembly (c30c83)

  42. >The last R US Senator was Pete Wilson elected in 1988.

    Technically not true. When Wilson stepped down to become governor, he appointed Michael Huffington to replace him; Huffington lost re-election to Feinstein the following year.

    aphrael (e0cdc9)

  43. Kevin M – the state republican party seems to become *more* socially conservative with each election rather than adjusting itself to california’s general social climate. That isn’t helping them.

    aphrael (e0cdc9)

  44. >which could be attributed to discretion although there is that nagging “faithful execution” annoyance. If he cannot impound money, he certainly cannot ignore a large class of lawbreakers.

    surely an office can say that given its limited resources, it’s going to ignore class [x] entirely unless it’s given sufficient resources, because in its judgment class [x] is less important than classes [a..g].

    we see this with local prosecutorial offices all the time.

    aphrael (e0cdc9)

  45. 43. whembly (c30c83) — 11/12/2019 @ 4:41 pm

    I know he’s rhetorical, but the dual-sovereign doctrine would allow the Feds to enforce marijuana laws, even if the state legalized it.

    The analogue to this case would be, if, as happened in reality, the federal government decided NOT to enforce the marijuana laws under certain specified circumstances (although I think the boundaries may be more vague than in the DACA case, and the privileges less guaranteed, or not guaranteed at all – Colorado marijuana businesses are running into problems maintaining bank accounts) could a new Attorney General then turn around and decide to enforce them again, or remove any immunity from prosecution? Gorsuch was trying to get Olson to argue that now they can’t any longer, or explain the distinction.

    Of course there is the distinction that this threatens to ruin peoples’ lives in a much more profound way, but that may not matter to the law. This right to peacefully go to or remain in a country where you are not a citizen was specifically excluded from the Universal Declaration of Human Rights, drafted in 1948, although it can easily be found, by implication, in the Declaration of Independence of the United States and the 1868 treaty with China, neither of which is law.

    Sammy Finkelman (a69e24)

  46. The law says nothing of the sort.

    Dave, you are correct. Instead the DACA program was designed to allow participants to take advantage of numerous benefits that they would otherwise be ineligible for, and that was by design of the DACA program.

    You argue that an indirect benefit is substantially different that a direct benefit, and pretend that it “just happened.”

    Kevin M (19357e)

  47. Sure. That’s why we got Jerry Brown for 8 years, followed by Newsome. and will have D Senators forever. And the D’s have a 2/3 majority in the legislature.

    The completely corrupted reapportionment commission (which basically dittoed the existing gerrymander after being astroturfed by fake community groups) had something to do with it. The balance on the commission was held by “independent” voters, which is to say those who had no interest in politics. They were easily swayed.

    To the Dems credit, they knew how to play it and the GOP was clueless as usual.

    Kevin M (19357e)

  48. the state republican party seems to become *more* socially conservative with each election

    Also smaller. Those two things are related. I have said before that there is room in CA for an actual broad-based center-right party.

    Kevin M (19357e)

  49. surely an office can say that given its limited resources…

    If so, and I don’t accept that, but if so they can change those priorities on another day. The court discussion talks about that at length and the following irony came up:

    When DHS decided to ignore half a million lawbreakers, that decision (to ignore federal law) could have been challenged as it was technically prohibited.

    Now that DHS has decided to FOLLOW the law, everybody starts suing. One of the questions is whether an agency’s decision to follow the law is reviewable.

    Kevin M (19357e)

  50. Can you imagine looking a kid in the face. One that has been here as long as they can remember. Some don’t even speak a foreign language. And they face deportation? Cold. That’s cold.

    noel (f22371) — 11/12/2019 @ 9:34 am

    That’s the law.

    NJRob (4d595c)

  51. A future case that will be decided here is the following:

    Let’s say that the DoJ announces that it will not enforce federal marijuana laws in states that have legalized marijuana, even though Congress has made no such reversal.

    (and apparently they have done so)

    So, a number of states set up taxing and regulation regimes and allow the growth, manufacture, slae and possession of marijuana within their borders.

    Fast forward a few years and a new administration determines that 1) federal law should be enforced and 2) that legal marijuana has led to a number of clear problems and therefore decides to begin enforcement again.

    The pot shops sue, claiming that they had been led to believe that they could come out in the open and operate within state law, and that they had reasonably relied on federal non-enforcement decisions. At the very least they want immunity and compensation.

    ============

    And this is why ignoring a law, rather than repealing or amending it, is a TERRIBLE idea.

    Kevin M (19357e)

  52. Shorter: Put not your faith in princes.

    Kevin M (19357e)

  53. UPDATE BY PATTERICO: This is a no-brainer. Whatever you think of DACA — I am conflicted by it but would probably on balance support it if done properly through a vote in Congress — it’s unthinkable to believe Obama can do it by fiat but Trump can’t undo it by fiat.

    I predict a 5-4 decision in favor of Trump. Yes, even Roberts will vote in Trump’s favor.

    Patterico (115b1f)

  54. You argue that an indirect benefit is substantially different that a direct benefit, and pretend that it “just happened.”

    I don’t think that is a recognizable description of what “I argue”.

    You said Obama outright broke the law by granting work permits to people subject to deferred action. That’s completely and demonstrably untrue. The administrative law he relied on was promulgated under Reagan in 1987; Obama did nothing to alter its provisions.

    The Immigration statute gives the Attorney General explicit discretion to authorize aliens to work in the United States:

    (3)Definition of unauthorized alien
    As used in this section, the term “unauthorized alien” means, with respect to the employment of an alien at a particular time, that the alien is not at that time either (A) an alien lawfully admitted for permanent residence, or (B) authorized to be so employed by this chapter or by the Attorney General.

    I think DACA was bad policy and poorly conceived. But the work permits were in no way illegal.

    Dave (1bb933)

  55. 44. aphrael

    Technically not true. When Wilson stepped down to become governor, he appointed Michael Huffington to replace him; Huffington lost re-election to Feinstein the following year.

    Michael Huffington was never a Senator.

    It was a man named John Seymour who was appointed to fill the seat Pete Wilson resigned from to become Governor of California. He lost in 1992 to Dianne Feinstein for the 2-year term. Michael Huffington ea for the Senate in 1994, and famously, spent a tremendous amount of money. But money alone can’t win elections. Dianne Feinstein had lost to Pete Wilson in the race for Governor in 1990.

    Sammy Finkelman (b78e49)

  56. Can you imagine looking a kid in the face. One that has been here as long as they can remember. Some don’t even speak a foreign language. And they face deportation? Cold. That’s cold.

    noel (f22371) — 11/12/2019 @ 9:34 am

    “The road to hell is paved with good intentions.“

    Under separation of powers the president is not allowed to create law. That is the responsibility of Congress. DACA is law created by President Obama. No matter how good the thought it is still unconstitutional.

    I believe even Congress passes laws that are unconstitutional. Article 1, section 8 lists what laws the federal government is allowed to create, anything else goes to the states and the people. I wish people would stop looking at the federal government as their parents.

    Tanny O'Haley (8a06bc)

  57. As usual, Mr. French nailed it:

    Putting aside for a moment the merits of the DACA policy, the Obama administration’s action suffered from a glaring flaw—it was a lawless abuse of executive authority. Congress is the lawmaker, not the president, and when Congress delegates rule-making to the executive branch, the executive branch has to go through the specific process outlined in the Administrative Procedure Act, which requires a public notice and comment period for proposed rules and imposes limits on rule-making authority. The Obama administration ignored that process. It simply wrote a memo.

    Paul Montagu (00daa1)

  58. Tanny O’Haley (8a06bc) — 11/13/2019 @ 7:27 am

    I believe even Congress passes laws that are unconstitutional. Article 1, section 8 lists what laws the federal government is allowed to create,

    And a law regulating immigration, and in particular a law allowing the federal governemnt to reach into the interior and authorize deportation, isn’t one of them

    Article I Section 8 Clause 4 gives Congress power over naturalization but not immigration.

    The Congress shall have Power… To establish an uniform Rule of Naturalization, and uniform Laws on the subject of Bankruptcies throughout the United States;

    There’s nothing here about immigration. This same clause gives Congress power over bankruptcy. That does not give Congress the right to write a commercial code.

    anything else goes to the states and the people.

    The tenth amendment.

    Ad beyond that, the power to admit people is specifically given to the states:

    Article I, Section 9, Clause 1

    SECTION. 9. The Migration or Importation of such Persons as any of the States now existing shall think proper to admit, shall not be prohibited by the Congress prior to the Year one thousand eight hundred and eight, but a Tax or duty may be imposed on such Importation, not exceeding ten
    dollars for each Person.

    You can say that indicates some power of Congress to prohibit, but it is undoubtedly derivative of the power to regulate foreign commerce, and perhaps of the power to arrange relationships with other countries. There’s certainly nothing here that gives Congress any power of internal enforcement.

    Sammy Finkelman (976d9e)

  59. Sammy, at 57: point taken. I’d conflated two forgettable politicians.

    aphrael (971fba)

  60. Under separation of powers the president is not allowed to create law. That is the responsibility of Congress. DACA is law created by President Obama. No matter how good the thought it is still unconstitutional.

    The president can, and does, create administrative law in the exercise of executive power granted by the Constitution.

    The first president to grant large classes of illegal immigrants deferred action was Ronald Reagan – he granted deferred action to spouses and children of people who had received amnesty under the 1986 immigration reform law.

    There is nothing unconstitutional or illegal about DACA, it is just bad policy.

    Dave (566720)

  61. What will be interesting is the twisted rationale those Justices who vote that the President has no authority to retract an executive order made by the previous President use.

    darrenm (b848ac)

  62. > President has no authority to retract an executive order made by the previous President use.

    the administrative procedures act, passed in 1946, requires that executive actions not be “arbitrary and capricious”. there’s a long and detailed body of legal precedent delineating what this means.

    this is a *procedural* requirement, not a *substantive* one. if President Trump loses on DACA it won’t be because he has no authority to rescind DACA, it will be because he didn’t follow proper procedure when he did so.

    aphrael (971fba)

  63. Putting aside for a moment the merits of the DACA policy, the Obama administration’s action suffered from a glaring flaw—it was a lawless abuse of executive authority. Congress is the lawmaker, not the president, and when Congress delegates rule-making to the executive branch, the executive branch has to go through the specific process outlined in the Administrative Procedure Act, which requires a public notice and comment period for proposed rules and imposes limits on rule-making authority. The Obama administration ignored that process. It simply wrote a memo.

    Having now researched this aspect of the policy a bit, I think failure to follow the Administrative Procedures Act seems to be the strongest legal argument against DACA.

    It is a bit more complicated than French suggests. Under the Administrative Procedures Act, a rule must undergo the vetting process if it is “substantive” or “legislative”. According to the decision in US vs. Texas (which overturned DAPA):

    A rule that narrowly constricts the discretion of agency officials is a substantive rule (as opposed to a general statement of policy that does not establish a binding norm and “genuinely” leaves officials free to exercise discretion).

    […]

    A rule is substantive/legislative if it adopts a new position inconsistent with existing law or otherwise effects a substantive change in existing law or policy.

    […]

    Agency actions that confer benefits not otherwise provided for in existing law are “legislative.”

    Obama made public statements indicating that DHS employees were expected to implement the new policy (i.e. they were “narrowly constricted” in their discretion), and to my non-lawyerly eyes, the judge’s rationale in Texas seems entirely persuasive.

    Dave (1bb933)

  64. I meant to include a link to the US vs. Texas decision.

    Dave (1bb933)

  65. Sammy,

    It looks like the federal government took over immigration by the misuse of the commerce and necessary and proper clauses of the US Constitution. Then when that didn’t work, in 1936 they decided the federal government had control over immigration not because they were delegated control in the US Constitution but because of magical “inherent sovereign powers” not in the constitution.

    If this site can be trusted.

    http://hrlibrary.umn.edu/immigrationlaw/chapter2.html

    Tanny O'Haley (9034c8)

  66. The Congress shall have Power […]
    To regulate Commerce with foreign Nations

    It looks like the federal government took over immigration by the misuse of the commerce and necessary and proper clauses of the US Constitution.

    Someone who enters the country enters the labor pool.

    Bringing horses across the border to pull a plow is obviously commerce with foreign nations, so why would bringing in people to drive those horses not be?

    The idea of having 50 (or more) different immigration policies is utterly insane (sanctuary cities on steroids…).

    Dave (1bb933)


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