n 2012, while serving as secretary of homeland security under President Barack Obama, Janet Napolitano created the Deferred Action for Childhood Arrivals program, or DACA. She did this by way of a guidance memo that barred line officers in the immigration services from deporting so-called “Dreamers” — individuals who had come illegally to the United States while they were under the age of 18 — as long as the Dreamer met certain criteria spelled out in the memo.
Although Napolitano claimed merely to be exercising long-standing prerogatives of prosecutorial discretion, the memo was understood by everyone involved to give Dreamers an entitlement not to be deported, a “lawful presence” in the United States, and associated benefits such as work authorization, social security and other social benefits available only to those legally admitted to the United States. Napolitano did not undertake a notice and comment rulemaking process under the Administrative Procedures Act; she just issued the memo on her own authority (though clearly with the blessing of her boss down the street at 1600 Pennsylvania Avenue).
Two years later, Napolitano’s successor as secretary of homeland security, Jeh Johnson, issued a supplemental memo, expanding the DACA program and also creating the DAPA program, Deferred Action for Parental Accountability, which offered this executive amnesty to millions more immigrants who are in this country illegally. Like Napolitano, Johnson claimed merely to be exercising standard prosecutorial discretion for his wholesale suspension of the law, but in the intervening two years, he and the lawyers at the Department of Justice also thought they found a statutory hook on which to base the issuance of work authorizations, because even they had realized how specious was the claim that prosecutorial discretion can be used not just to decline to prosecute, but to actually award benefits and to treat as lawful conduct that is unlawful. Secretary Johnson also failed to run his memo through the notice-and-comment ruling process mandated by the Administrative Procedures Act.
That failure resulted in the DAPA program being blocked by the federal courts, first the District Court for the Southern District of Texas, and then the 5th U.S. Circuit Court of Appeals. The latter decision was affirmed by an equally-divided Supreme Court. To this day, DAPA is not in effect because it was preliminarily enjoined for likely violations of the Administrative Procedures Act. DACA’s legality stands (or rather falls) on exactly the same ground.
Moreover, even had the two memos been run through the APA’s procedure, there are compelling arguments, recited at length in the 5th Circuit’s opinion, that the president (and his underlings) cannot use the excuse of prosecutorial discretion to implement what is a wholesale suspension of the law, and certainly not to bestow on the beneficiary of the discretionary decision not to prosecute a lawful status and entitlement to benefits that depend on that lawful status. But one need not take the 5th Circuit’s word for it. President Obama himself, on more than two dozen occasions before Napolitano issued her memo, stated publicly that he had no constitutional authority to do what he did by way of the Napolitano and Johnson memos. “I’m president, I’m not king,” he famously said back on Oct. 25, 2010, responding to requests from illegal immigrant rights groups to implement immigration reform unilaterally by executive order. “There’s a limit to the discretion that I can show because I’m obliged to execute the law,” he added. “I can’t just make the laws up myself.” And then, on March 28, 2011, he pointedly stated: “With respect to the notion that I can just suspend deportations through executive order, that’s just not the case.”
So now comes President Donald Trump, who through his attorney general has revoked the DACA memo and announced that he plans to discontinue the illegal DACA program itself after a wind-down period of six months. Just announced, mind you. He hasn’t actually revoked the DACA “entitlement” for anyone yet. And his subsequent tweet on the subject suggests that he might not even revoke it in six months, if Congress itself has failed to adopt a DACA program of its own through the lawmaking process actually set out in the Constitution. But the mere suggestion that he might revoke the illegal, unconstitutional program and start meeting the constitutional mandate to “take care that the laws be faithfully executed” has drawn predictable outcries from the illegal immigrant lobby, including the author of the initial illegal program, Janet Napolitano herself.
In the suit filed last week by Napolitano and the University of California’s Regents, Napolitano contends that Trump’s decision to cancel the illegal DACA program is itself a violation of the Administrative Procedure Act, the same statute that Napolitano and Johnson failed to follow when creating the DACA and DAPA programs in the first place. Chutzpah doesn’t begin to cover it.
In addition, Napolitano claims in her lawsuit that the threatened cancellation of the DACA program violates the due process rights of the illegal alien beneficiaries of the illegal program. The “Dreamers,” and the University of California as well, have “reliance interests” in the continuation of the program (apparently in perpetuity), they assert. This, despite the fact that Napolitano concluded her own memo with an explicit statement to the contrary: “This memorandum confers no substantive right, immigration status or pathway to citizenship,” she wrote. “Only the Congress, acting through its legislative authority, can confer these rights.” And yet, now, she argues that the rights conferred by her memo are so substantive that they cannot be rescinded. Again, chutzpah.
In ordinary times, and in most courts, this suit (and the me-too suit subsequently filed by California’s Attorney General) would be quickly dismissed for the political charade it is. But these are not ordinary times, and we should not be surprised if Napolitano finds a sympathetic ear in the San Francisco-based federal court in which she filed the suit. And in the San Francisco-based Court of Appeals thereafter, before the Supreme Court eventually puts a stop to it. But when a new president, elected in no small measure on a promise to start enforcing our nation’s immigration laws, can be accused of acting illegally for using his prosecutorial discretion to begin enforcing the law in contrast to his predecessor’s claimed use of “prosecutorial discretion” not to enforce the law, the rule of law itself is in a perilous place.
This piece was originally published in the Los Angeles and San Francisco Daily Journals.
John Eastman is the Henry Salvatori Professor of Law & Community Service, and Former Dean, at Chapman University’s Fowler School of Law, and a Senior Fellow at The Claremont Institute. For more information, click here.