No cabinet official can get a President in more trouble faster than his Attorney General, and Trump has made the right choice with Bill Barr.
In NAACP v. Trump, the federal district court for the District of Columbia has ordered the Trump administration to continue the patently unconstitutional Obama administration program that suspended enforcement of criminal and civil immigration laws for “certain young persons”—the now-famous “dreamers.” The court found that it was “arbitrary and capricious” for Attorney General Jeff Sessions and the Department of Homeland Security (DHS) to decide that the program was illegal and unconstitutional. The Department of Justice has filed an appeal.
About 1.2 million young persons (up to the age of 30 years young) illegally in the country were said to qualify for the Deferred Action for Childhood Arrivals (DACA), the executive abrogation of federal immigration laws unilaterally promulgated by President Obama and DHS in 2012. Under Deferred Action for Parents of Americans (DAPA), the 2014 expansion of DACA, law enforcement was likewise suspended for the parents of the dreamers, approximately 4.3 illegal immigrants. DACA and DAPA together made illegal immigrants eligible for various federal and state benefits, including under DAPA, social security and Medicare benefits, and, thus, bestowing on them something approaching full citizenship.
In its two DACA decisions in the spring and August of this year, the federal district court for the District of Columbia completely ignored the uncontroverted fact that DACA was in every respect an act of legislation by the Obama executive branch. The principal person so characterizing DACA in that manner had been President Obama himself who maintained that since Congress had failed to pass legislation “to fix our broken immigration system” after two years of debate, “the right thing to do” was for he himself to enact DACA because the dreamers “for all intents and purposes, are Americans.” Likewise, the New York Times argued at the same time that: “If this reminds you of the Dream Act, it should. The Dream Act is a bill in Congress to give legal status to young immigrants who go to college or serve in the military. It has long been stalled by Republicans . . . ”
The District of Columbia district court has now faulted Attorney General Sessions and the Trump administration for agreeing with President Obama and the Times. In September 2017, the Trump administration’s DHS, prompted by a directive from Attorney General Jeff Sessions, rescinded DACA. Sessions asserted that DACA had been “an unconstitutional exercise of authority by the Executive Branch” that had been promulgated “after Congress’ repeated rejection of proposed legislation that would have accomplished a similar result.” In his directive, the Attorney General referred to the 2015 decision of the Fifth Circuit Court of Appeal enjoining DAPA, a decision that had been upheld by the Supreme Court in a 4-4 decision without an opinion. He stated that “the DACA policy has the same legal and constitutional defects” as DAPA. In its 2017 memorandum responding to Sessions and rescinding DACA, DHS likewise referred extensively to the Fifth Circuit’s decision about DAPA and said that DACA had conferred “certain benefits to illegal aliens that Congress had not otherwise acted to provide by law.”
In the ruling below that prompted the Fifth Circuit’s 2015 decision, the Texas federal district court had said that DAPA was “in effect, a new law” and had called DAPA “a massive change in immigration practice” that went “beyond mere enforcement or even nonenforcement of this nation’s immigration scheme.” The Fifth Circuit then agreed that DAPA was an agency decision “of vast economic and political significance” that was “not authorized by statute.”
In her 2012 memorandum creating DACA, Obama administration’s Secretary of Homeland Security Janet Napolitano, cited “prosecutorial discretion” as the basis of her decision to stop enforcing the criminal and civil immigration laws against the Dreamers. Thus, DACA was unprecedented in more than one way. There had never been an edict exempting a whole class of people from being subject to criminal laws. Federal prosecuting attorneys — who are officials of the Department of Justice, not DHS — across the country, each in his own district, had never had their prosecutorial discretion usurped by a federal agency. After the memorandum, they could no longer prosecute illegal aliens for the kind of criminal laws covered by DACA because DHS investigating agents would no longer be investigating and bringing such cases to them. Thus, it was false for Napolitano to refer to “prosecutorial discretion” with respect to DACA.
And the whole DACA initiative was based on an unprecedented stretching beyond any previous definition of “prosecutorial discretion.” That doctrine allows a prosecutor essentially unlimited discretion to choose the kind of criminal charges to file or not to file, the content of plea bargains, and sentencing recommendations. The basis of such discretion is that at the time of bringing charges only the prosecutor (together with investigating law enforcement officers) knows all the evidence and the applicable criminal laws. As cases proceed, of course, the prosecutor’s initial “discretion” becomes subject to the evaluations and criticisms of both defense attorneys and the courts.
But, until DACA, prosecutorial discretion was thought to pertain only to individual cases. It was not a general policy applicable to a whole range of cases. It was not even a policy. It was certainly not a law or the equivalent of a law or, as in DACA, an executive department’s replacement of a law. By the DACA precedent, the Trump or any subsequent administration could refuse to enforce any law.
The major rationale enunciated by the District of Columbia district court for its decision to enjoin DHS from reinstituting its enforcement of all the immigration laws was “the particularly egregious” failure of DHS to consider “the reliance interests involved.” The 2017 DHS decision rescinding DACA, the court said, had failed to include consideration of “the reliance of hundreds of thousands of beneficiaries, many of whom had structured their education, employment, and other life activities on the assumption that they would be able to renew their DACA benefits.” The court referred to examples among the plaintiffs, almost all of whom were anonymous, who would have to abandon undergraduate and graduate enrollments, for instance, and even forego their plans of “attending law school.” However, in basing its decision on the reliance interests — which is to say, the rights — of illegal immigrants, the court avoided consideration of the section of the 2012 DHS memorandum that made clear that “[T]his memorandum confers no substantive right, immigration status, or pathway to citizenship.” DAPA had an identical passage.
Again, since the Trump Department of Justice has appealed, the decision of the district court is in abeyance. But as of now, a federal district court has decided that the Trump Department of Justice’s attempt to return to the rule of law and the separation of powers is “arbitrary and capricious,” especially when it conflicts with the hopes and dreams of “certain young people” who expect to attend law school in this country. And the same court has endorsed and further entrenched an Obama administration decision, now six years old, granting federal prosecutors the “discretion” to choose as a matter of policy what laws they favor and what laws they do not favor.