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Tuesday, September 05, 2017

DACA, the Travel Ban, and Presidential Power: Coming Clean on How Policy Preferences Really Drive Legal Interpretation

Trump supports a broad construction of his powers under a 1952 statute authorizing him to "suspend the entry of all aliens or any class of aliens as immigrants or non-immigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate." But Trump takes a narrow view of his powers to confer "affirmative benefits" like the right to work on an entire class of unlawfully present aliens, despite a provision in IRCA defining an "unauthorized alien" as someone "not... "authorized to be ...employed ... by the Attorney General." Is this a hypocritical institutional flip-flop? As Mike Dorf suggests, President Trump's narrow construction of the IRCA delegation but broad construction of the 1952 delegation seems like just another example of how politicians hypocritically tailor their institutional preferences to their substantive views of what the institution (here, the Presidency) is actually doing. Right?

Well, maybe -- but it is hard to make that accusation stick here, given the legal ambiguity of canons andd statutory language. The Llewellyn-style contradictions in doctrines governing statutory interpretation, the ambiguity of the "shadow constitutional norms" protected by canons like Kent v. Dulles, and the ambiguity of textual "ambiguity" necessary to trigger canons like Brown & Williamson make principled cross-statutory generalizations about presidential power here (and perhaps elsewhere) almost impossible.

There is perhaps a big moral buried in this morass about the death of theory in public law. I am happy, however, to rest on a simpler proposition: Trump's opponents should stick with the policy merits -- as Ilya Somin notes, suspending DACA is a really, really bad idea -- and forgo accusations of Article II hypocrisy.

How could the DOJ, arguing on Trump's behalf, reconcile Trump's positions on presidential power over the Travel ban and powerlessness to enact DACA? To support his argument for a narrow reading of IRCA's provision defining "unauthorized aliens," Trump could follow the Fifth Circuit (footnote 178) in citing Brown & Williamson for the proposition that the waiver of IRCA's ban on employment is a "question of deep ‘economic and political significance’ that is central to this statutory scheme" such that Congress' intention to delegate the power must be conferred "expressly." IRCA's obscure definitional provision just is not "express" enough. But the 1952 statute, Trump would argue, is crystal clear: Brown & Williamson's "express delegation" requirement has been met.

Of course, 8 U.S.C. 1152(a) of the Hart-Cellar Act of 1965 also bans discrimination "in the issuance of an immigrant visa because of the person’s race, sex, nationality, place of birth, or place of residence." But Trump would reply that he is not discriminating in the "issuance of an immigrant visa": He is discriminating in the exercise of his power to suspend entry of any class of aliens. Refusing visas is simply different from suspending entry: One can, for instance, suspend an alien's right to enter even if they happen to have a visa (and Trump did so with his first E.O.).

But what about the idea that the 1952 power must be narrowly construed when it is used to interfere with important liberty interests, a la Kent v. Dulles -- a theory to which I am partial? Trump would reply that he exempted current visa holders from his E.O. precisely to insure that this liberty interest was protected: Aliens with no prior connection to the United States have no liberty interest in entry. Against Sunstein's and Stewart's old argument that statutes by themselves confer liberty interests in (for instance) asylum, Trump could respond that such a theory has never been unambiguously accepted by the Court, especially in the immigration context where the President's powers have generally been broadly construed.

In short, there are plausible enough reasons to distinguish presidential power over work restrictions on Dreamers under IRCA from presidential power to suspend entry under the 1952 statute. That I tend to reject those reasons says more about my immigration libertarianism than the objective merits of these rival arguments. Given my ideological priors, I am in favor of a broad reading of liberty interests of aliens abroad, a broad reading of an admittedly obscure definitional provision in IRCA, and a narrow reading of a McCarthy Era statute handing a blank check to the President to suspend aliens' entry,

For the sake of legal academic credibility, I think that it is a good idea to acknowledge how our these ideological commitments shape our legal arguments. In fact, the law is ambiguous enough to make this debate largely a matter of policy. Given that the canons governing this area are policy-oriented doctrines like Brown v. Williamson Kent v. Dulles,, this acknowledgment that the legal debate here is largely a policy dispute does not foreclose the SCOTUS's ruling against or in favor of the President on either or both the Travel Ban and/or DACA. Sometimes legal ambiguity forces SCOTUS to make a policy judgment, whether they like it or not.

Acknowledging that the "law" here turns on policy preferences, however, should make us law profs a bit humble about hurling accusations of hypocrisy. On issues like this one, we are consigned to exhibiting our policy priors by the so-called "doctrines" of statutory interpretation and muddled statutory language. The sooner we candidly acknowledge the ambiguity of the law, the quicker, perhaps, we can smooth over the sense of conservatives that Leftish law profs disguise their policy preferences as "law" defiance of which brands their opponents all "lawless."

Posted by Rick Hills on September 5, 2017 at 09:03 PM | Permalink


I appreciate the point. But, (perhaps because I have my blinders on) I fail to see how it is conceivably hypocritical to (a) read a statute which authorizes the President to "suspend the entry of all aliens or any class of aliens as immigrants or non-immigrants" as conferring on the President the authority to, well, suspend the entry of any class of aliens, while at the same time (b) not reading into a clause in the definitions section of a statute describing the potential penalties for employing unauthorized aliens which excludes aliens who have been authorized by the AG as granting the president (or is it the AG?) the authority to authorize a million aliens.
I think the attack would only make sense if someone reads statutes as part of some grand narrative- great executive powers, or small executive powers. Or liberal immigration laws, as opposed to strict, or xenophobic, immigration laws.

Posted by: biff | Sep 6, 2017 7:33:04 PM

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