The DACA Decision In Historical Context

I was asked yesterday why I hadn't commented on the DACA decision. My view at the time was that it simply lacked legal interest--in those terms it was simply dumb. Further, it probably doesn't stand for any lasting precedent. That was an aspect that President Trump picked up on immediately. Some commenters, tongue in cheek, pointed out the implications of the decision if it were taken seriously as precedent: 

Blue Flu Cernovich
@Cernovich 

Today's DACA ruling gives Trump immense new power to confer rights upon citizens, even when those newly granted rights contravene statutory law. 

Under today's DACA ruling, Trump could create an executive order to workaround Section 230 immunity. 

Trump could declare via EO that citizens have a right to access social media, and that it is unlawful to ban people based on their political viewpoint. 

Under today’s DACA ruling, Trump can issue an executive order granting Americans amnesty from paying taxes.  

This ruling is a blank check.  

Never seen anything like this.  

The unitary executive theory is back, and on steroids!

But Trump, as usual, got to the heart of the matter:

Donald J. Trump
@realDonaldTrump 

Do you get the impression that the Supreme Court doesn’t like me? 

10:10 AM · Jun 18, 2020

This was simply the Establishment reflexively thwarting our non-PC president, the president the Establishment abominates and wishes to vomit from its maw, without a thought for constitutional principles--hardly surprising after the Bostock decision. Indeed, the majority of the SCOTUS appeared to proceed without a thought for its own legitimacy, given that legitimacy in their own eyes is sufficient unto them. Legitimacy in the eyes of a huge portion of the great unwashed outside the major metro areas seems to not to be a concern.


And so I remarked:

Roberts and Gorsuch appear to be intent on totally discrediting the Judiciary as a responsible branch of government. As if the emanations of Bostock weren't enough, the DACA case today is equally farcical.

The editors of the WSJ, DACA supporters to a man, are nevertheless responsible enough to express dismay at these antics, the symptoms of a constitutional order is serious disarray, not to say, decay. The title of the their editorial, almost ironically, actually makes the same point that Trump makes, although they take it to a different level:

On Daca, Obama Can but Trump Can’t

They make quite a few good points, but in the final analysis it amounts to little more than hand-wringing. The collective mind of the Establishment has long since been decided and will not be changed by the concern of more cautious souls. They plunge on headlong, deconstructing our constitutional order without nary a thought for where they are heading and leading the rest of us:

Sometimes getting to the right policy via the wrong process does more harm than good. We fear that will be the case with Thursday’s unfortunate 5-4 Supreme Court decision to block President Trump’s rescission of Barack Obama’s order for Deferred Action for Childhood Arrivals, widely known as Daca. 

... We support legalization for these 700,000 or so immigrants, as a matter of fairness and as contributors to American life. But this is an issue for Congress. The Court’s ruling on administrative-law grounds reads like a desired policy outcome in search of justifying legal logic, and it is likely to do long-term harm to the Constitution’s separation of powers and maybe to immigration reform. 

... the problem is that the Obama Administration never followed the APA [Administrative Procedure Act] when it issued Daca in 2012. Daca was never tested in court, but the Fifth Circuit Court of Appeals in 2015 issued an injunction against a companion order to Daca. The Supreme Court upheld that injunction, and the Trump Administration had every reason to believe Daca was thus illegal too. 

“Today the majority makes the mystifying determination that this rescission of DACA was unlawful. In reaching that conclusion, the majority acts as though it is engaging in the routine application of standard principles of administrative law,” Justice Clarence Thomas writes ... “On the contrary, this is anything but a standard administrative law case.” 

As Justice Thomas explains, a President should not have to follow normal administrative procedures to reverse a policy that was unlawful in the first place. 

... 

The practical consequence of the ruling is that a President can create an unlawful policy without legislation from Congress, but a future President cannot lawfully undo it without first jumping through regulatory hoops that can take years. This is an invitation for executive mischief, especially by Presidents at the end of their terms. They’ll issue orders that will invite years of legal challenge if the next President reverses them. 

As Justice Thomas puts it: “Today’s decision must be recognized for what it is: an effort to avoid a politically controversial but legally correct decision” that has “given the green light for future political battles to be fought in this Court rather than where they rightfully belong—the political branches.”

The reality, as Trump saw, is that this decision only really applies to him.

Yesterday I read another article that takes a deep historical dive into the origins of our constitutional order, and seeks in that history lessons for conservatives today. It's quite lengthy but fascinating. It's by Ofir Haivry and Yoram Hazony:

American Nationalists

Alexander Hamilton's Federalist Party provides a blueprint for conservatives today.

The authors frame their argument in terms of "nationalism," and it's easy to see in Trump's policies that he falls pretty squarely within the "nationalist" tradition--the tradition that the authors argue was advanced by the Federalists who basically framed our Constitution and the resultant constitutional order. The authors paint a picture of our history that, to draw a parallel to Russian history, could be expressed in this way: The Federalist founders sought to build Democracy in One State, drawing on our cultural origins in the English constitutional history, while the Jeffersonians who founded the Democratic Republican Party were more interested--at the time of the Constitutional Convention--in contributing to an international revolution, a wild eyed new order of the world, a la the French Revolution.

Here's how the author's introduce their argument:

It is sometimes said that there is no authentic tradition of American nationalism. Indeed, as nationalism has gained strength in the United States in recent years, some writers have gone so far as to say that nationalism is “un-American”—a claim we’ve heard from Bret Stephens of the New York Times, Kim Holmes of the Heritage Foundation, and Elan Journo of the Ayn Rand Institute, among others.

Nevertheless, this view of nationalism in America is mistaken. The truth is that America produced a great, home-grown nationalist political tradition, and indeed a ruling nationalist party: the Federalist Party, which advanced a set of principles and policies that were obviously nationalist, and in fact can serve as a model and an inspiration to nationalists today. First forged into a distinct political grouping with a set of common ideas during the 1780s by the failure of the Articles of Confederation, the American nationalists were headed by figures like George Washington, John Adams, John Jay, Alexander Hamilton, Robert Morris, Gouverneur Morris, James Wilson, Oliver Ellsworth, Rufus King, John Marshall and Noah Webster. They regarded America as one nation characterized by a single political and cultural inheritance, in 1787 spearheading the constitutional convention in Philadelphia, the adoption of a new constitution, and its subsequent ratification. They then went on to lead the American government for its first twelve years under the new Constitution. In this period of ascendancy, the nationalists established the principal executive, economic and judicial institutions of the nation, as well as shaped the leading judicial interpretation of the national Constitution until the 1830s. In fact, we may say that to a great degree, the Federalists founded America as we know it.

The authors then go on to formulate and to discuss at length the principles of American Nationalism:

The Nationalist Principles of the Federalist Party 

What were the nationalist principles of the American Federalist Party? As in any political alliance, there were many differences of opinion and temperament among the Federalists. Moreover, the views of some of the leading Federalists clearly evolved over time. Nevertheless, we can point to eight broad political principles that may be said to have characterized the Federalists in their struggle against the anti-nationalists and the Democratic Republican Party. All of these principles derived from the belief in the existence of a unique American nation, with a unique cultural inheritance derived from Britain, and the desire to unite the various parts of this American nation under a strong central government. These principles include: 

• A distinct American nation of British heritage.
• American constitutional continuity with the British constitution.
• The Supreme Court responsible for interpreting the Constitution.
• Economic nationalism.
• Nationalist immigration policy.
• Alliance with Britain.
• Alliance between religion and state.
• Opposition to slavery.

For our purposes the important point here is the role of the Judicial Branch in cementing into place the order that the Federalists' Constitution envisioned. The Federalist hold on Executive and Legislative power soon slipped from their hands, but because they had packed the SCOTUS with Federalist judges, the SCOTUS was able to maintain the general shape of our constitional order.

That strategy, using the Judicial Branch to enforce and maintain constitutional order, seemed like a good idea at the time to the Federalists. However, if history teaches us anything it's that nothing lasts forever--least of all a constitution written on paper. The notion of the SCOTUS as principled guardians of the Constitution has long been a pious fiction, but since the New Deal the question has taken on ever more urgency: What is the remedy for the country when the SCOTUS--not to mention virtually the entire legal establishment--falls into the hands of wild eyed revolutionaries, albeit in traditional black robes?

It is that problem that the authors have in mind in their concluding paragraphs. They offer no concrete solutions, but just articulating the need for a solution is helpful. There can be no doubt that we face the need for serious reform of our constitutional order--an undertaking not lightly to be entered upon:

Today, nationalists are rediscovering the worth of Federalist ideas: Of a foreign policy based primarily on national interest, and on an alliance with English-speaking countries and like-minded national states sharing America’s commitment to national independence and individual liberties. Of an economic policy directed toward a renewal of American industry and technological leadership in the face of dangerous rivals abroad. And of immigration policies emphasizing the need for newcomers to integrate into a culture that cherishes inherited American traditions and the values they bear. It may be that as Americans regain an appreciation of the Federalist Party’s principles, their wisdom will be retrieved in other areas as well, leading to a recognition, for example, that the American nation will not endure without a return of religion to public life, and without ensuring that the descendants of slaves are an integral and honored part of the American nation. 

On one issue, however, today’s nationalists may well wonder at the views of their Federalist predecessors. The Federalists’ national Supreme Court, with the power to void legislation, played a crucial role in establishing a unified American national state—just as they intended. But the Federalists assumed that the justices would be traditionalists, wishing to serve as “faithful guardians of the Constitution,” as Hamilton wrote. None of them imagined the circumstances that most Western nations face today, in which jurists use the national Supreme Court to impose what is in effect a new constitution—one that is post-nationalist and hostile to Christianity—by judicial fiat. Under these conditions, contemporary nationalists have no choice but to seek ways of limiting the power of the judiciary to subvert the Constitution, just as their forefathers sought ways to limit the power of the legislature to do so. 

In these areas and others, a nationalist politics must be built upon a fundamental understanding that was embraced by the Federalists—and that can be embraced again by their nationalist heirs in our day as well: the insight that Americans are not merely a collection of individuals, an essentially arbitrary subset within some universal brotherhood of individuals. They are rather a distinct nation, with a proud and important heritage that is unique in the world, and that still has much to achieve and much to contribute, both to America and to others.

The modern revolutionaries understand all this. That is why they seek to erase the past from our consciousness, through control of government run education.