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The Constitutionalism of Caprice

Judicial modesty is a permanently depreciating currency on the Ninth Circuit, so it would be premature, less than two weeks into January, to describe a decision emanating therefrom as its most arrogant and indefensible of the year. Some judge out West will try to outdo it, and probably will. But for institutional overreach accomplished on the basis of bizarre constitutional reasoning, it will take effort to top Judge William Alsup’s preliminary injunction preventing the Trump Administration from undoing the Deferred Action for Childhood Arrivals, or DACA, program.

Alsup’s argument amounts to this: Because the Obama Administration had the constitutional discretion to implement the program unilaterally, the Trump Administration lacks the constitutional discretion to revoke it unilaterally. The reasoning is as predictable as it is insidious: The Trump Administration made a constitutional judgment against the program, and such judgments belong to the judicial branch alone.

That reasoning manages to achieve a result even harsher toward so-called DREAMers—those brought to this country illegally but as children and therefore not through their own fault—than revocation of DACA. It leaves their fate to the transient whims of presidents and judges.

The particular problem with this decision is that it discourages healthy constitutional behavior. The Trump Administration—which is quite arguably wrong on the substance of DACA—nonetheless disclaimed the authority of its own branch to implement such a policy unilaterally. That it made any constitutional judgment, as opposed merely to a policy one, is important; that it made one that constrains the authority of the presidency is exceptional. One would have expected past administrations of both parties to defend presidential authority—even authority to do that with which they disagree—at any cost.

The stage was thus set for exactly what ought to happen: forcing Congress to defend the consequences of current law, which does indeed provide for deportation of DREAMers, or to act like a legislature and legislate. Yet in rode the judiciary to spare Congress, and its constituents, such burdens.

Alsup’s reasons for doing so are so flimsy that it is difficult to explain them absent sheer judicial arrogance. The core of the ruling objects to Attorney General Jeff Sessions’ decision that the 2012 memorandum establishing DACA was “an unconstitutional exercise of authority by the Executive Branch.” Alsup views that belief as mistaken, which is wrong but defensible.

What is wholly indefensible is his claim that only the judiciary can interpret the law, and that the Trump Administration cannot unilaterally undo what the Obama Administration unilaterally did if its reason is that the latter acted unconstitutionally: “The main, if not exclusive, rational for ending DACA is its supposed illegality,” Alsup asserts, and if the illegality argument fails, the Administration’s justification for ending DACA is capricious. “But,” he continues, “determining illegality is a quintessential role of the courts.”

That is a heroic stretch, insofar as presidents and Congress are supposed to “determine” whether a law is constitutional before they enact it, and have every right to exercise their constitutional powers to judge laws already in force. It would be more accurate to say, with Marbury, that judges interpret the meaning of law. Alsup’s phrase is nonetheless a useful construction of judicial power, insofar as it is entirely accurate. Determining illegality is a “quintessential role of the courts.”

But that is not what Alsup means. He means it is exclusively the role of the courts: i.e., that a president or, presumably, Congress cannot base a decision on a constitutional judgment with which the courts disagree. This is the textbook misinterpretation of Marbury, which in saying the courts have the emphatic duty to say what the law is never claims that only the courts bear such a duty.

In fact, presidents are no less bound to the Constitution by oath than judges. They exercise constitutional judgment, or are supposed to, all the time, as in fact the Obama Administration did when it concluded DACA was legal in the first place. We ought to want presidents to reason constitutionally rather than on the basis of policy preference alone.

It is true that the Administration’s constitutional reasoning coincides with its policy agenda in this case. It is equally true that DACA has, in Alsup’s words, “become an important program for DACA recipients, for the employers who hire them, for our tax treasuries, and for our economy.” If, as one suspects, “important” is a judge’s unsubtle synonym for “good,” there are compelling economic and humanitarian reasons to agree.

But there is a larger institutional point that transcends the immediate policy. By revoking the DACA memorandum, the Administration forced Congress to be accountable for itself. Either it must change the law to accommodate DREAMers, whom President Trump has somewhat puzzlingly said should “rest easy” under his Administration, or to defend their deportations. That was bearing fruit in President Trump’s stated openness to a comprehensive immigration deal subject to the give and take of legislative compromise. His spokeswoman was correct to say it is necessary for “an issue of this magnitude” to “go through the normal legislative process.”

What is necessary, in other words, is deliberative self-government, in which actual accountability, for elected officials and voters alike, is inescapable. For this reason, one suspects this injunction yielded sighs of relief even in many quarters where DACA is at least nominally opposed. Members of Congress are pleased, however indefensibly, to surrender authority to judges or presidents because doing so allows them to inveigh without accountability.  It was the White House’s revocation that triggered the recent flurry of legislative activity. If it stands, the injunction will relieve pressure on Congress to resolve the issue.

It will also leave DACA enrollees in the unfair position in which the Obama Administration’s unilateralism initially placed them: at the whim of the most transient constitutional institutions rather than the most secure. Presidents are one such institution, as defenders of DACA—including former Homeland Security Secretary Janet Napolitano, now a plaintiff in the case in her capacity as head of the University of California—ought to know.

The sword of unilateral executive power has two edges: It enables policies to be enacted easily and to be undone with the same pen and phone when those instruments convey—as they always do—to a different hand. Those who asserted the constitutionality of the DACA memorandum are in the least formidable position to oppose its revocation on any grounds other than policy—grounds on which they lost in the last election.

Indeed, the election of a president with whom DACA defenders disagree ought to have been an object lesson. Yet by turning to the courts instead of persuading the public and its representatives to enact their preferences in enduring law that is not subject to whim, they are doubling down on the constitutionalism of caprice.

Presidents come and go but so, as defenders of DACA ought also to know, do judges. President Trump has set a record pace in judicial confirmations. Those who live by judicial power will have no complaint when, as will happen, it turns on them. By suing rather than persuading, they have simply transferred the whim under which DACA enrollees live to another branch of government that is—as Alsup’s rickety reasoning shows—no less eager to exercise it.

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