Kevin Fandl (Temple University – Fox School of Business and Management) has posted Presidential Power to Protect Dreamers: Abusive or Proper? (Yale Law & Policy Review, Vol. 36, No. 1, 2018) (17 pages) on SSRN.  Here is the abstract:

Many young undocumented immigrants brought to the United States as children, affectionately known as “Dreamers,” enjoy substantial protection from deportation under the Deferred Action for Childhood Arrivals (DACA) program. President Trump’s administration is attempting to withdraw this protection, purportedly in an effort to promote the rule of law by limiting executive overreach into matters of congressional concern. This Essay argues that the attempted rescission of DACA is not only out of step with broadly held American values, but premised on a flawed vision of the relationship between the legislative and executive branches. Our constitutional tradition wisely grants the President flexibility to make social policy through enforcement discretion, within the broad legal contours drawn by Congress. DACA is a legitimate exercise of that presidential power.

Maybe.  I want to focus on the second-to-last sentence of the abstract: “Our constitutional tradition wisely grants the President flexibility to make social policy through enforcement discretion, within the broad legal contours drawn by Congress.”  I think that is probably right.  It’s part of the checking function of separation of powers: the legislative branch makes law, but it depends on an independent branch, the executive, to enforce the law.

The executive cannot refuse to enforce the law altogether (rather, the executive must take care that it is faithfully executed) but the executive can modify a law’s harsher or undesirable aspects through enforcement discretion.  DACA (or at least some aspects of it) can be seen as modifying a harsh aspect of the immigration laws.

However: this view of executive enforcement discretion is contrary to a competing view of the President’s “faithful execution” obligation, as expressed most forcefully in the recent article by Andrew Kent, Ethan Leib and Jed Shugerman in the Harvard Law Review: Faithful Execution and Article II.  As I understand the paper, a central proposition is that the President may not use policy disagreement as a ground for nonenforcement (although the President might choose not to enforce for practical reasons such as resource constraints).

On this view, DACA cannot be justified as constitutional enforcement discretion based on social policy (although it might still be justified as an exercise of power delegated by the statute).

And a further thought, which really isn’t addressed in the paper despite its strong conclusions: if DACA is an exercise of “mak[ing] social policy through enforcement discretion,” the President should not be limited in his ability to reverse it.  An exercise of presidential discretion is, by definition, discretionary.  The current President’s view — that the DACA program goes beyond the President’s duty of faithful execution — may be incorrect, but it is at least plausible (as the Kent et al. article suggests).

And a core check on a President’s power to “make social policy through enforcement discretion” is the electorate’s power to replace him with a President who sees the policy in a different light.

NOTEThis post was originally published at The Originalism Blog, “The Blog of the Center for the Study of Constitutional Originalism at the University of San Diego School of Law,” and is reposted here with permission from the author.

Michael D. Ramsey
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