It is plainly immoral to deport Dreamers, people raised in the U.S. as undocumented aliens. President Donald Trump seems to understand that — which is why, when he officially rescinded President Barack Obama’s Deferred Action for Childhood Arrivals program, he said he had no choice because the program was illegal.
Now the Supreme Court is being asked to rule on whether Trump’s rescission was itself illegal. That puts the court into a bind. Logically, the court should uphold Trump’s power to shut down the program. If Obama as president had the power to create DACA, Trump should have the power to end it. Morally, however, the court shouldn’t take away Dreamers’ right to remain in the U.S.
Direct conflict between law and morality is the stuff of great works of literature, not to mention a host of “Law & Order” episodes. But it is much rarer in real life than you might think.
That’s not because most laws are so very moral. It’s because lawyers are really good at coming up with creative ways to bring legal decision-making into accordance with moral intuitions.
It’s just this kind of creative legal solution that has been devised by the lawyers representing state governments and the Dreamers themselves. The argument, which several lower courts have found convincing and which they are now presenting to the Supreme Court, runs as follows:
Trump did have the constitutional power to end DACA. But he went about it in the wrong way, because he did not give a valid public explanation for ending it. Had he said that he considered DACA to be bad policy, that would have been a lawful reason for ending it. Saying DACA was “illegal” wasn’t permissible — because, the lawyers argue, DACA in fact wasn’t illegal. And there is a legal principle that the government’s explanations for its actions must be reasonable, not arbitrary or capricious. If Trump was wrong about DACA being illegal, they say, then his decision was arbitrary.
On the surface, this argument sounds clever, complicated, and maybe correct. There is a problem with it, however. In 2015, the U.S. Court of Appeals for the 5th Circuit ruled that Obama did not have the power to issue a program for parents called DAPA, that was structured essentially identically to DACA. When that ruling was brought to the Supreme Court, it split 4-4 over its validity (Justice Antonin Scalia’s death had left the court shorthanded). A tied Supreme Court decision leaves the ruling of the lower court in place. It doesn’t, however, turn the lower court ruling into Supreme Court precedent.
The existence of that appeals court ruling makes it hard to say that Trump was genuinely wrong when he said DACA was illegal. True, the Supreme Court itself hadn’t said so — they’d just voted 4-4 on a very similar case. But Trump could have been predicting that the Supreme Court would eventually rule 5-4 against DACA once Justice Neil Gorsuch took Scalia’s seat.
Moreover, Trump could have asserted that, in his view and that of his Department of Justice, the appeals court was correct, and that DACA, too, was beyond the power of the president. After all, the president has a duty to follow the Constitution. In principle, you would think that enables him to say that his reason for undoing a program enacted by the prior administration was that he deemed the program unlawful.
Plenty of administrative law experts — including my colleague and fellow Bloomberg Opinion columnist Cass Sunstein — take the view that Trump needed to explain his reasoning more fully, rather than hiding behind the incorrect notion that the appeals court decision forced his decision to end DACA. The power of this view lies in the intuition that the government must give genuine reasons for its actions, and that Trump shouldn’t have been allowed to pass the buck to the courts rather than owning his decision to end DACA. Color me unconvinced. Trump certainly did want credit for ending DACA; I doubt anyone, with a law degree or without, truly believes he sought to end DACA because he genuinely felt he had no choice.
If I’m right, as a legal matter, the justices should uphold the rescission. As a moral matter, they shouldn’t.
Is there another way out of the box? Another colleague of mine, Ben Eidelson, who has been representing the Dreamers, has argued that the justices should use a technicality to save the part of DACA that allows Dreamers to stay in the U.S., even if they can’t legally work while here. It’s creative lawyering, and it could partly save the justices from the most immoral consequence of deciding in favor of Trump.
The argument is aimed squarely at Chief Justice John Roberts. We don’t know who voted which way in the court’s 2016 DAPA deadlock, but it seems highly likely that Roberts was one of the four justices who voted to reverse the program. Maybe, though, he will buy the idea that there’s some part of DACA that can be saved.
If he doesn’t, Roberts will face the hardest situation for any judge committed to the rule of law: Taking action that sacrifices the hopes of innocent people to the demands of legality.
Noah Feldman is a Bloomberg Opinion columnist. He is a professor of law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. This column does not necessarily reflect the opinion of Minnesota Lawyer, the Bloomberg editorial board or Bloomberg LP and its owners.