Jurisprudence

Will the Supreme Court Call Out the Administration’s Lies About DACA?

There’s another motive behind Trump’s decision to revoke protections for Dreamers.

Dreamers protest in front of the U.S. Capitol on Dec. 6, 2017, in support of the DACA program.
Mark Wilson/Getty Images

Few norms in our politics have taken a greater beating in recent years than respect for the truth.

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That’s what made the Supreme Court’s opinion in June’s landmark census case so important. When the Trump administration tried to explain its decision to add a citizenship question to the census by pointing to the fabricated goal of enforcing the Voting Rights Act, the Supreme Court called its bluff. “If judicial review is to be more than an empty ritual,” Chief Justice John Roberts wrote for the majority, “it must demand something better than” a “contrived” explanation. The court thus remanded the case, inviting the administration to tell the truth about why it wished to ask census respondents about their citizenship status.

The court decided the census case just four months ago. But as the saying goes, history repeats itself. On Nov. 12, the administration will be back before the Supreme Court attempting to defend another controversial policy reversal—this time, its effort to rescind the Deferred Action for Childhood Arrivals program, or DACA. Once again, the policy at issue reflects a popular position that, if reversed, would have drastic repercussions for our society. And once again, the administration has explained its choice to the American people in a way that defies reality.

DACA, announced by President Barack Obama in 2012, allows “certain young people who were brought to this country as children and know only this country as home” to apply for discretionary relief from removal if they satisfy particular conditions. More than 700,000 people have received deferred action status under DACA. That group, often referred to as Dreamers, includes remarkable young people like Mitchell Santos Toledo, who arrived in the United States as a toddler, worked multiple jobs to provide for his family and pay for school, and now attends Harvard Law School. DACA enjoys overwhelming support among the voting public: a staggering 87 percent of respondents favor the policy.

Despite DACA’s popularity, the Trump administration rescinded the program on Sept. 5, 2018. The administration offered a single-sentence explanation, justifying the reversal based on a cursory letter from then–Attorney General Jeff Sessions. In that letter, Sessions argued that DACA was “unconstitutional” and “without proper statutory authority,” citing in turn ongoing litigation in the 5th U.S. Circuit Court of Appeals. The Trump administration’s official explanation for terminating DACA, in other words, was that it had no choice: The policy was unlawful.

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This explanation is a lie. Just like its contrived justification for the census citizenship question, the administration had a very different motive in mind when it rescinded DACA.

How do we know? For one thing, the legal conclusion the administration offered is obviously wrong. Indeed, this is the main ground on which two lower courts invalidated DACA’s rescission—a ground the Supreme Court could well follow itself. But if the court wants to avoid issuing a divisive ruling on DACA’s lawfulness, it can decide this case instead by requiring the administration to give truthful reasons for its decision. Under basic principles of administrative law affirmed by the Supreme Court in the census case, government agencies must “offer genuine justifications for important decisions, reasons that can be scrutinized by courts and the interested public.”

To understand how DACA’s supposed unlawfulness was not the real reason behind the administration’s revocation decision, start with the assertion that DACA is “unconstitutional.” The Trump administration has filed a 57-page brief defending DACA’s rescission in the Supreme Court, and it says not a single word about DACA’s supposed unconstitutionality. For good reason: Article 2 of the Constitution vests executive power in the president, which clearly includes prosecutorial discretion—that is, the ability to decide how to use limited resources when enforcing the law. A policy like DACA, which enables executive officials to concentrate their resources on higher priorities (such as the removal of undocumented people with criminal records), is surely within that power.

As for the claim that granting deferred action status via DACA is without statutory authority, that is plainly incorrect too. Presidents dating back to Dwight Eisenhower have granted deferred action status to immigrants who would be otherwise removable, including on the scale presented by DACA: A 1987 Reagan administration program authorized relief to some 1.5 million undocumented people. Critically, Congress has been well aware of these deferred action programs. But rather than passing a statute to prohibit them moving forward, it has ratified deferred action programs by referencing them expressly in a number of statutes.

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To be sure, the Trump administration might have been telling what it believed to be the truth, only to misunderstand the law. But there is near–smoking gun evidence that this is not the case: President Donald Trump himself made clear that he did not believe DACA exceeded his constitutional or statutory authority. After all, on the exact day the Department of Homeland Security announced DACA’s rescission, the president tweeted that if Congress would not legalize DACA, he would “revisit this issue” himself.

What, then, was really driving the decision to revoke DACA? Again, Trump’s Twitter account is revealing: DACA was revoked to create a trade chip for the vaunted border wall that the president had promised throughout his campaign. “The Democrats have been told,” Trump tweeted just months after DACA’s rescission, “that there can be no DACA without the desperately needed WALL at the Southern Border.” He repeated this demand again in February 2018: “Any deal on DACA that does not include … the desperately needed WALL is a total waste of time.”

These demands fit neatly within a straightforward timeline. In April 2017, Trump threatened to force a government shutdown if Congress would not fund a border wall. His threat failed. By May, Trump supporters—including some at the conservative news outlet Breitbart—began to grumble about the president’s broken promise. In June, Breitbart published another critique, complaining that “the border wall was the signature promise of Trump’s campaign and the most visible initiative of his presidency, yet has been allowed to fall behind schedule.” And so in an effort to appease his supporters, Trump rescinded DACA in September to create leverage for his much-ballyhooed border wall.

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That bears repeating: The president threatened to disrupt the lives of hundreds of thousands of hardworking, law-following immigrants—a group whose combined federal, state, and local tax contributions exceed $8 billion a year—all so that he could spend taxpayer dollars on a border wall that the conservative Cato Institute referred to as “impractical, expensive, and ineffective.”

To be clear, there is nothing unconstitutional about using a policy like DACA as leverage for some other policy initiative, no matter how foolish that initiative might be. But our legal system requires truthful reasons for administrative action. As the Supreme Court explained in the census case, permitting officials to get away with “contrived reasons would defeat the purpose of the enterprise.”

And sometimes the truth doesn’t hold up to scrutiny. In the census case, a wealth of information discovered on a deceased Republican political strategist’s hard drive revealed that the administration’s actual motive behind the citizenship question was to craft partisan-gerrymandered electoral maps. And so the court’s demand for the truth mattered: The administration ultimately declined to ask the citizenship question at all.

Put simply, officials must tell the truth in a democracy so that the people can hold them accountable. When the administration shifts the blame for rescinding DACA to the courts—as it tried to do when it argued the policy is unlawful—but in actuality wants to use DACA as a bargaining chip for a border wall, the people are deceived in a way that makes it harder to exercise power at the polls. It is precisely at moments like these when the Supreme Court must stand up to repeat a simple demand: Mr. President, tell the truth.