[Noah Feldman] Trump’s right: Immigration is Congress’ mess

By Korea Herald
  • Published : Sept 12, 2017 - 17:34
  • Updated : Sept 12, 2017 - 17:34
Amid the laudable moral support for the DACA recipients after President Donald Trump’s revocation of the Deferred Action for Childhood Arrivals program, liberals should keep in mind an important constitutional principle: Immigration is supposed to be the province of Congress, not the executive. The belief that the president has ultimate immigration power can lead to terrible results -- like Trump’s travel ban against six majority-Muslim countries, also powered by the mistaken idea that immigration policy should be set by executive order.

The Framers of the Constitution thought about immigration and wanted Congress in charge. Article I, Section 8, which enumerates Congress’s authorities, confers the power “to establish an uniform rule of naturalization.” The idea was to make sure the different states didn’t try to establish their own rules. Behind that push lies the idea that deciding who can be in the country is a fundamentally legislative decision, which should reflect the beliefs of we the people who elect members of Congress.

Former President Barack Obama’s DACA program was and is morally appealing, for obvious reasons. It sought to allow people brought to the US as children to stay in the only country many had ever known. But its mode of enactment -- executive fiat -- left a lot to be desired, constitutionally speaking.

The formal justification for DACA was that the president has the authority to execute the immigration laws that Congress passes, and that power inevitably requires the exercise of discretion to set priorities of enforcement. Like other presidents before him, Obama took the view that his enforcement discretion allowed him to make formal rules stating that certain people in the US illegally would not in fact be deported -- and could even register for work permits.

Note that Obama could not and did not claim that he alone could legalize DACA recipients’ presence. He couldn’t; only Congress can change the law.

DACA, in other words, wasn’t really a permanent solution granting legal equality or status to its recipients. It was more like a boon granted by the grace of the executive. And the executive, of course, could change its mind, as happened when Trump succeeded Obama.

The courts were poised to rule DACA unconstitutional on the ground that the president can’t actually create his own immigration policy that conflicts with Congress. The proof of this comes from the legal challenge to the Deferred Action for Parents of Americans and Lawful Permanent Residents policy, which Obama adopted to extend to DACA recipients’ parents.

A federal appeals court froze that policy, known as DAPA, during the Obama administration, reasoning that the discretionary power to execute the laws doesn’t extend so far as to transform immigration policy. The US Supreme Court was short-handed because Obama’s nomination of Judge Merrick Garland was being blocked by Senate Republicans. So the justices divided 4-4 on the DAPA issue, leaving the court of appeals’ freeze in place.

The addition of Justice Neil Gorsuch all but assured that if and when the issue returned to the court, the decision would go 5-4 against presidential authority. DACA and DAPA aren’t meaningfully different with respect to discretionary authority. They rest on the same constitutional rationale.

Yes, in theory Justice Anthony Kennedy could change his vote; and (also in theory) we don’t know the 4-4 lineup because the court doesn’t announce who voted which way in a tie. But the justices know how they voted, and it would be exceedingly hard for any of them, including Kennedy, to flip on DACA.

A decision striking down DACA would have vindicated the principle of a limit on the executive’s immigration powers. And although that might sound upsetting to liberals sympathetic to the Dreamers, it actually shouldn’t be.

The case in point is Trump’s travel ban. Like DACA, the travel ban purports to be an exercise of the president’s discretionary powers. According to the Trump administration, the travel ban is authorized by the immigration law that formally allows the president to exclude would-be visitors on the basis of national security. This grant of authority is explicit in the statute. The president’s discretion to enforce the law is by contrast only implicit in the executive’s constitutional power to execute the laws.

Trump’s travel ban thus presumably reflects his belief -- no doubt shared by much of the public -- that immigration is up to the president. That’s both wrong and dangerous.

Say what you like about this Congress, but it is highly unlikely that it would have passed a law so obviously discriminatory as Trump’s travel ban. Had such a ban been introduced, many in Congress would have denounced it. There would have been a public debate.

Not so for the travel ban, issued by executive order after being drafted in secret and in haste.

That’s a good proof of why the Framers were right to place immigration policy in the hands of Congress. Whatever choice we make as a country should be owned by the branch of government that deliberates and represents the will of the people.

The upshot is that eroding Congress’s legislative authority over immigration has consequences. Trump’s presidency is the best reminder liberals are ever going to get that the popularly elected president shouldn’t be allowed to govern without Congress.

Executive overreach is bad government -- no matter which side does it. Congress should take responsibility for immigration, and pass a new version of DACA that would count as law, not presidential fiat.

By Noah Feldman

Noah Feldman is a Bloomberg View columnist. -- Ed.