Given the intense political polarization of the immigration debate, it was only a matter of time until the Dreamer regulations were subjected to a separation-of-powers attack in court. That’s just what happened. The state of Texas, governed by officials intensely hostile to undocumented immigration from Mexico, challenged the legality of the regulations before a handpicked Republican federal judge. When asked why Texas had a stake in the issue sufficient to grant it authority to mount a federal court challenge, Texas’s lawyers answered that, under the Dreamer regulations, a significant number of undocumented immigrants would qualify for driver’s licenses, forcing Texas to expend funds in connection with the processing and issuance of the licenses. Honest—that’s what Texas claimed was the constitutionally necessary “injury in fact” it would suffer under the regulations. I guess someone forgot to tell Texas that the Dreamer kids who received the driver’s licenses would also become eligible to work, and to pay sales, payroll, property, and income taxes, more than offsetting the trivial expense of issuing the licenses.
But then, Texas’s real objection to the regulations was political, not financial. Lawyer-talk about the financial cost was just the usual obfuscation by American lawyers that has given them such a good name. The Republican federal judge selected to hear the case couldn’t wait to get his hands on the Dreamer regulations. He grasped at Texas’s tale of financial woe and, without reaching the difficult separation-of-powers issue, seized on a hypertechnical requirement that new executive regulations should have been subjected to a public notice and comment period before adoption as the justification for a nationwide injunction. The Obama administration appealed to the federal appeals court for Texas, where conservative Republican judges maintained a comfortable majority.
The appeals court focused on the hard question of whether the president was making new law or merely deciding how to implement existing law. A unilateral presidential regulation with such far-reaching categorical impact, encased in an institutional framework, was, the appeals court held, an exercise in lawmaking, something allocated solely to Congress. I’d be willing to bet, though, that the same Republican judges would have upheld President Trump’s unilateral travel ban.
An immediate appeal was taken to the Supreme Court, operating with eight justices after the death of Justice Scalia. The Court split 4–4 along party lines, with the four Republican justices invalidating the Dreamer regulations as new laws promulgated by the executive in violation of separation of powers and the four Democratic justices treating them as valid exercises in executive implementation of existing law. Under traditional Supreme Court practice, while a 4–4 tie is not a final decision on the issues, it does affirm the decision below, leaving the nationwide injunction of the lower court in place.
So Texas was rewarded for winning the race to the closest Republican courthouse by securing a lower court judgment that froze the implementation of the Dreamer regulation, even though Texas couldn’t persuade a majority of the Supreme Court that the president had violated the separation of powers. That’s where things stood when Donald Trump unexpectedly won the 2016 presidential election.
Supporters of the Dreamers had confidently expected that a newly elected President Hillary Clinton would fill the vacant ninth Supreme Court seat with a Democratic justice who would provide a fifth vote upholding the Dreamer regulations. Instead, President Trump didn’t even bother to wait for the Supreme Court. He unilaterally rescinded the Dreamer regulations as beyond the power of the executive branch, while simultaneously expressing sympathy for the Dreamers’ plight and urging Congress to enact legislation rescuing them. Trump then cynically turned the issue into a bargaining chip for his border wall, refusing to support a congressional fix for the Dreamers unless Congress complied with his demands for $25 billion to fund a Mexican border wall, a massive increase in the pace of apprehension and deportation of undocumented aliens, and an end to the program of reuniting families, in favor of a “merit-based” immigration system that would avoid immigrants from “shithole” nations and favor those from prosperous countries such as Norway.
At that point, the Democrats launched a separation-of-powers counterattack, arguing that President Trump lacked power to rescind the Dreamer regulations. At first glance, it seems difficult to invoke separation of powers to challenge a president’s decision to revoke regulations that are, in his opinion, beyond his power to issue. Why shouldn’t the president be allowed to eliminate an executive regulation that he believes may go beyond presidential power?
The answer, so far, lies in President Trump’s characteristically dishonest explanation for rescinding the Dreamer regulations in the first place. In order to shield himself from political criticism for failing to recognize the strong moral and social reasons for sparing Dreamers from deportation, Trump professed support for allowing them to remain in the United States with a regularized status but claimed that he was unable to do anything about it without congressional authorization. He then blocked congressional authorization by linking it to funding his border wall.
In effect, Trump argued that he was reluctantly rescinding the Dreamer regulations because they exceeded presidential power, while simultaneously urging Congress to authorize him to reissue them. Democratic federal district judges in San Francisco, Brooklyn, and Washington, DC, decided to take Trump at his word, overturning a presidential decision to rescind the Dreamer regulations premised on an inaccurate understanding of his presidential powers. They ruled that the Republican Texas appeals court had been wrong in holding that President Obama was making a new law when his administration issued the Dreamer regulations. In fact, ruled the three federal judges, President Obama had merely been making legitimate, unilateral decisions about how the existing law should be implemented.
While all three Democratic federal judges agreed that President Trump is free at any time to rescind the regulations because he disagrees with them, they ruled that he cannot base rescission solely on an inaccurate belief about the scope of his—and President Obama’s—powers as president. Trump’s lawyers then took the unusual step of asking the by now Republican-controlled Supreme Court to review two of the lower court decisions immediately. The Supreme Court, led by the chief justice, rejected the application, routing the appeals through the circuits in the ordinary course, where they currently languish.
My bet is that the pattern will hold. Republican-dominated appeals courts will rule for President Trump. Democratic-controlled appeals courts will rule in favor of the Dreamers. In the end, of course, the fate of the Dreamers will be decided by a Republican Supreme Court. Four Republican justices (including the chief justice) have already shown their cards in voting to affirm the Texas appeals court’s finding that President Obama was improperly making new law, not deciding how to implement existing law. The four Democratic justices showed theirs in voting to uphold President Obama’s power. Want to bet on the votes of Neil Gorsuch and Brett Kavanaugh?
For what it’s worth, I believe that the Texas appeals court was wrong in finding that the Dreamers regulation is a new law, violating separation of powers. It’s a close case, though. An exercise in prosecutorial discretion not to enforce certain laws because of scarce resources is clearly not a violation of separation of powers. But the Dreamer regulations are much more sweeping and elaborate than the usual exercise of prosecutorial discretion. So the issue could plausibly be decided either way. I would break the legal tie by asking whether President Obama’s decision not to deport the Dreamers results in a dangerous concentration of powers capable of causing harm to individuals. That’s what separation of powers is intended to prevent. That’s how the Supreme Court upheld the independent counsel law.
To my mind, a president’s decision, pending final congressional action, to refrain from deporting a vulnerable, morally innocent group of young people does not cause a dangerous concentration of powers. So in a tie case like this I would uphold the Obama regulations. But don’t get too excited. The Supreme Court, with Neil Gorsu
ch and Brett Kavanaugh, will probably jump at the opportunity to invalidate the Obama regulations as soon as it gets the chance.
It’s worth trying to stave off the inevitable, however, at least until the 2020 elections, in the hope that Congress will finally act or that a new president will find a way out of the impasse. In order to buy time, it will be crucial to throw sand in the gears of any effort to deport Dreamers before new rules can be put in place. It may come down to running out the clock. Here’s one way to do it.
As part of the original Obama regulations, Dreamers were encouraged to come forward and to register for the favorable treatment promised by the president. More than 700,000 young people did so. So the government is sitting on all the information it needs to crank up the deportation machine—information obtained under a false promise of leniency. It’s like enticing someone into pleading guilty by promising a lenient sentence and then backing out of the deal. Government should not be able to ensnare young people—or anyone else—by tricking them into giving officials the information the government needs to deport them by falsely promising that it would be used only to benefit them. There’s a law against that. It’s called equitable estoppel, and it prevents the government from benefiting from its own wrongdoing.
Thus, any effort to deport Dreamers should be met by a nationwide injunction barring deportation unless the government demonstrates that it is not relying on information wrongfully gathered under what turned out to be a phony promise of leniency. That should stall the deportation machine long enough for you—and millions and millions like you—to pass judgment at the polls. In the end, as with the fate of the Muslim travel ban and the impact of the Mueller investigation, the fate of the Dreamers will not be finally resolved as a matter of separation of powers. Their fate is up to you. The Senate managed to assemble fifty-four votes for a deal that would protect the Dreamers and build Trump’s wall on the Mexican border. But, under the current filibuster rules, it takes sixty votes to enact Dreamer legislation. That’s why Obama couldn’t do it. Trump shot the border-wall/Dreamer deal down because he thinks he can hold the Dreamers hostage to more draconian cuts in nonwhite, non-Christian immigration.
In December 2018, President Trump doubled down on his restrictive immigration strategy by shutting down the government in an effort to force Congress to authorize billions of dollars to build a wall on our southern border with Mexico. When Congress refused and the voters turned restive, Trump resorted to authoritarian decree, proclaiming a phony “national emergency” and asserting unilateral presidential power to transfer funds from authorized military projects to build the wall. When Congress reacted by enacting joint resolutions rejecting the existence of a national emergency, Trump resorted to the veto, leaving Congress unable to muster the needed two-thirds vote to override. Unless the Supreme Court intervenes, therefore, nothing can stop Trump from unilaterally imposing draconian immigration policies except the voters. Even worse, unless the courts stop him, Trump will have built a road map for authoritarian presidential governance based on self-proclaimed national emergencies.
He’ll get away with it unless the 2020 elections change the political calculus in Congress and deliver a new Congress and a new president, who will rescind the travel ban, reinstate the Dreamer regulations, and develop an enforceable but humanitarian immigration policy.
THE GREAT DEREGULATION MASSACRE
Democrats don’t like to admit it, but Donald Trump, in his first eighteen months as president, may have presided over one of the most dramatic power shifts in American history. The tax bill he championed funneled vast sums to the wealthy, exacerbating a massive national divide between the very rich and the rest of us. The Trump administration and a Republican Congress also combined to repeal hundreds of executive regulations protecting consumers, the environment, employees, the elderly, the ill, children, small investors, and ordinary internet users. In industry after industry, restraints on harmful, exploitive, or dangerous behavior were gutted or repealed. The net effect shifts massive power to corporate and business leaders, who are today the real rulers of the Trump nation. Acting alone, the newly elected Democratic House of Representatives can’t do much about it.
The power shift took two paths. Congress, acting under a statute from the 1990s, combined with President Trump to wipe out almost every regulation issued in the closing days of the Obama administration. As we’ve seen, ordinarily, under separation of powers, Congress can’t unilaterally undo executive regulations because doing so would hand Congress the dangerously concentrated power of making new laws and controlling how the laws are enforced. But the 1990s legislation provides a framework for cooperative action by Congress and the president to wipe out executive regulations within sixty days of issuance. Since both the president and Congress must agree to erase a recent executive regulation, the 1990s legislation does not necessarily concentrate two powers in a single branch, although it’s still not clear to me why a Congress respectful of separation of powers should be mucking around with regulations at all. Short of winning the presidency in 2020 and reissuing the regulations, there’s not much the Democratic House can do to put that Humpty-Dumpty together again.
More often, though, President Trump and his appointees acted unilaterally, often through political appointees who had worked for the regulated industry prior to Trump’s election, to roll back important regulations protecting the environment, climate, consumers, and health care. Technical objections to the procedures used to alter pre-existing regulations have succeeded in slowing the process of change down in twenty-eight of the thirty legal challenges to Trump’s effort to alter environmental regulations, but eventually Trump’s appointees will get the mechanics straight and obliterate or badly weaken a broad swath of valuable regulations. Neither the use of congressional regulation-stripping legislation nor executive repeal raises a genuine separation-of-powers issue. That’s what presidents do. What one president can do by issuing regulations, another can undo. But—and here’s where the hope for the future comes in—a third can redo.
In the end, the Trump deregulatory revolution is built on separation-of-powers sand. It lasts only as long as Trump is president. Its future is almost entirely in your hands.
OFF THE WALL: THE NATIONAL EMERGENCY LOOPHOLE
The Founders’ idea of separation of powers may have its share of dents in the twenty-first century, but it continues to serve as a significant constitutional brake against a runaway president. The requirement that Congress authorize executive action in advance and appropriate the funds to carry out presidential initiatives gives the legislative branch a potent two-step check on presidential adventures. No congressional authorization; no presidential power. No congressional appropriation; no money to support a presidential initiative.
But President Trump has identified a potential massive “national emergency” loophole in the Founders’ plan that threatens to leave it in ruins. According to our forty-fifth president, all a president need do to concentrate all three powers of government—the power to make the law; the power to enforce the law; and the power to resolve disputes about the law’s meaning—in his own authoritarian hands is to issue a proclamation of national emergency vesting him with power to rule by presidential fiat. President Trump’s decision to throw a “national emergency” tantrum in response to Congress’s refusal to appropriate more than $5 billion to build additional walls on our southern border with Mexico threatens the very survival of our constitutional system.
The president initially refused to sign any appropriations legislation that does not provide funds for his wall, forcing a shutdown of about 25 percent of the federal government, ending paychecks for 800,000 federal workers and thousands of federal contractors, and depriving hundreds of thousands of Americans of needed governmental services. More than three weeks into the government shutdown, President Trump, facing plummeting poll ratings, caved in and re-opened the government without obtaining funding for his wall. But he then declared a national emergency on
the southern border, insisted on spending disaster relief funds on the wall in the teeth of Congress’s refusal to grant him funds. Both houses of Congress then voted to reject the phony national emergency, but the president overrode them with a veto. If Trump succeeds in using a national emergency declaration as a substitute for congressional authorization, separation of powers won’t just have a few dents. It will cease to exist. Any president, at any time and for any purpose, can simply throw a national emergency switch turning off constitutional limits on presidential power. Vladimir Putin would smile and welcome Donald Trump to the dictators’ club.
Will Trump get away with trashing the separation of powers? As usual, the problem began small and grew because of congressional willingness to cede power to the president, and Supreme Court failure to defend the separation of powers. The first presidential declaration of national emergency did not occur until February 1917, two months before war was declared on Germany. Acting pursuant to the Shipping Act of 1916, President Woodrow Wilson declared a national emergency permitting him to bar the transfer of American-owned oceangoing ships to noncitizens. Wilson was not attempting an end run around Congress. He was merely seeking to activate a non-controversial restriction that Congress had pre-approved, leaving it to the president to decide when to place it into effect.
Over the years, Congress embraced the Wilson precedent, drifting into the habit of tacking provisions onto statutes authorizing the president to take a congressionally pre-approved action only if the president deemed it necessary to meet a national emergency. By my unofficial count, a national emergency trigger was built into about five hundred statutes. In almost all of them, Congress authorized the president to activate defined regulatory sanctions, usually against foreigners, whenever a “national emergency” required the action. That’s how economic sanctions are usually imposed on nations or foreign nationals. That’s how President Trump has sought to justify his unilateral power to impose tariffs on Chinese products without congressional authorization.
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