Why do people consider DACA unconstitutional?

First, we have to keep in mind that not everyone means the same thing when they say that some particular legal action is unconstitutional. Some people mean something like “it would not survive a challenge in the courts.” Call this the ex post approach. Others mean something like “it ought not survive a challenge in the courts.” Call this the ex ante approach. The former is more of a pragmatic approach that says that what the law is and how it is carried out are more or less equivalent at any given time. The latter is more of a theoretical approach that says what the law is and how it is carried out may be decidedly out of sync with each other at any given time.

On behalf of those who take the ex post approach, the simplest case to make is this: DACA was the subject of a 4–4 split decision before the US Supreme Court in June 2016, and now Antonin Scalia’s seat has been filled by Neil Gorsuch. The overwhelming likelihood is that Gorsuch would turn this into a 5–4 decision against DACA. Therefore, DACA would not survive a challenge in the courts. Therefore, DACA is unconstitutional.

On behalf of those who take the ex ante approach, the simplest case to make is this: the DACA order was a piece of secondary legislation (the only sort of legislative power afforded to the executive branch). Secondary legislation, however, is subordinate to primary legislation (which must be passed by Congress) and can only be used to specify how to implement a piece of primary legislation. It cannot be used as a substitute for primary legislation. DACA, however, was explicitly noted as an executive action taken due to the absence of a desired piece of primary legislation (i.e., the DREAM Act). Therefore, DACA ought not survive a challenge in the courts. Therefore, DACA is unconstitutional.

It is worth noting that neither of these arguments are in fact being used by the Trump administration. The second one is closer to their argument than the first one, but the simplest case is rarely the one actually made in court or to the public.

It is also worth nothing that while the President of the United States does have broad authority regarding immigration, public statements of intent matter. Just as public statements made by Trump and his surrogates about the immigration ban being aimed at Muslims were considered relevant to its legal evaluation, Obama’s public statements about the DACA order being a result of Congress’ failure to pass the DREAM Act could be used as evidence that he was attempting to do something beyond the scope of his authority.

And, of course, some people just don’t know what they’re talking about in the first place. So there’s no guarantee that everyone who considers DACA to be unconstitutional has coherent reasons for doing so.

There’s a better long answer, but the short answer is that “unconstitutional” is commonly used these days to mean “something I don’t like”

Remember Trump is confused by / doesn’t understand the Constitution. So of course anything the other guy did is unconstitutional.

The Russians are coming, the Russians are coming.

Thank you!

@SavoirFaire can I ask two follow-up questions about those positions you described?

Why would Gorsuch’s appointment support the ex post approach? Given the timeline of DACA, Gorsuch would not have heard the case—but Garland, had he been appointed, would have… and then couldn’t the decision just as likely swung the other way? (At least, that’s more or less what the Republicans in Congress feared). Wouldn’t the difference between those two scenarios suggest that the law isn’t necessarily carried out the same way at any given time, but instead the specific people making the judgments determine how the law is carried out? (Edit: If I’m understanding ex post correctly?)

What makes DACA secondary legislation? From what I understand it only used tools—namely, deferred action—that were already a part of the executive branch’s legal reach, that were already granted to the executive branch by Congress. From my (admittedly limited) understanding, that doesn’t sound like legislation as much as… I’m not sure of the word I’m looking for—though I’m guessing it’s because I don’t understand what defines something as legislation?

@Soubresaut Good questions!

Regarding the first, I wouldn’t say that the appointment of Gorsuch supports the ex post approach. It just gives it more data to work with. Split 4–4 decisions usually get reargued once the court is full again. So in the wake of the June 2016 decision, the ex post approach would say that the constitutionality of DACA depended on who was appointed to fill Scalia’s seat. Once Trump was elected, it was inevitable that anyone he appointed to the Supreme Court would not vote to uphold DACA. Knowing it’s Gorsuch just lets us fill the blank with a name. But you’re right that a Clinton victory would have changed all of this. That’s why the ex post approach is more pragmatic. It is more about actual outcomes and is therefore heavily dependent on time and place.

Regarding the second, all executive actions are secondary legislation since secondary legislation is the only sort of legislative power afforded to the executive branch. Every time an agency run by the executive branch issues a rule or regulation, it is also secondary legislation. Basically, secondary legislation is anything that has the force of law but wasn’t issued by the legislative branch. Here’s where it gets complicated. The president has every right to issue directives regarding enforcement priorities and procedures. But the president does not have the right to issue such directives in an effort to bypass Congress (effectively decreeing legislation that Congress hasn’t passed or has refused to pass). To the extent that DACA was put in place because Congress wouldn’t pass the DREAM Act, one could argue that the order was an attempt to bypass Congress (which goes beyond the scope of executive power). Intention and context both matter when it comes to the law and the use of powers granted to one’s office.

Thanks! I think I understand those better now!

Another question: can anyone explain the role of the Administration Procedure Act would play in DAPA and DACA+‘s implementation? Why was Texas able to sue the administration for violating it? I guess I’m mostly confused about what the act is, what it applies to.

I think this is a better way to explain my last source of confusion, though maybe I should put it in a different question at this point? I don’t know.

I believe that I understand the two legal argument examples you gave, @SavoirFaire. And thank you again!

The argument Texas gave about DAPA and DACA+ seems like it’s a yet third example of an argument (though it about a different executive action), and the gist of it (from what I can tell) seems to be that the Obama administration should have given a period of notice and something like a hearing for the states to voice issues/grievances they had with the policy… I’ve never known executive orders/actions to need that kind of process. But then again, I don’t know very much about executive orders/actions.

Basically, I’m confused about why these particular executive actions (DAPA and DACA+) would require advanced notice and hearings but other executive actions apparently don’t?

Maybe also I need to do a bit more research on DAPA and DACA+ before asking… I hadn’t looked as much at them before, but I see now that they do a bit more than simply offer deferred action (something about expanding a provisional waivers program, making some changes to visa programs, and promoting the naturalization process? I don’t really know what these things mean right now.)