There is a New Precedent on Executive Orders, and President Trump’s are no Exception
by John Cleer


Nearly two months ago, the Supreme Court blocked Trump’s attempt to rescind DACA on grounds that his administration did not properly explain itself, in accordance with the burdensome Administrative Procedure Act (APA) of 1946; specifically, that no consideration was given to how DACA’s rescindment and renewed deportations would affect “Dreamer” immigrants who’ve built new lives in the US with US citizenship.

In Chief Justice John Roberts’ words, “We do not decide whether DACA or its rescission are sound policies. We address only whether the agency complied with the procedural requirement that it provide a reasoned explanation for its action.”

Contrary to the implication of those words, an explanation was indeed given, but apparently deemed insufficient: DACA is illegal, since former president Obama, in enacting it, was reversing duly-established, Congress-approved law and by doing so, was in violation of the Constitution’s division of powers, and therefore the directive should be undone.

It is a puzzling position for the Court to take that this explanation is insufficient, as the APA itself instructs courts to “hold unlawful and set aside agency action … found to be … not in accordance with the law; [or] contrary to constitutional right.” This is written in section 706(2), directly next to the line Roberts cites when he calls Trump’s action “arbitrary and capricious.”

But that is their position, and it is binding “on all federal courts, and binding on state courts regarding issues of constitution and federal law.”

Prominent attorney John Yoo has referred to this (and a widening of prosecutorial discretion) as giving Obama and successive presidents (like Trump) a post-enactment “second veto,” in this case a veto of federal immigration law, according to which the immigrants were subject to deportation.

Obama claimed to be exercising “prosecutorial discretion” by not applying the law to them, but Yoo maintains that since DACA declared a wide class of immigrants to be exempt from immigration law (numbering as high as 50% of the total number of immigrants), Obama by reducing enforcement among those migrants to zero had nullified the law.

Yoo cites the Take Care Clause of Article Two of the Constitution as prohibiting this by declaring that a president must ensure that laws are “executed faithfully.” This is incidental to general conclusion regarding DACA quoted above, as Roberts stated clearly that whether or not DACA or its rescission are legal or Constitutional, they must comply with the APA. And under prosecutorial discretion, a president can stop legally stop enforcing any law he wants, completely.

That is the new precedent that was set. Complete prosecutorial discretion should provide a formidable defense against many of the lower courts’ temporary “injunctions,” and APA procedure regardless of legality will make it difficult and slow for presidents to reverse the actions of their predecessors.

This interpretation has been credited largely to Yoo by the mainstream press, who invariably characterize him as the “torture memos” guy in what appears to be a coordinated smear effort. Is this the waterboarding stuff? I do not know, since none of them specify, and I doubt their readers know many of the details either. It happened decades ago. Is it directly relevant, beyond the revelation that Yoo is some kind of evil genius? And is he the kind they will praise later if he takes up painting, as they do now with President Bush, Jr.?

Instead of writing it in their own words, the newspapers are hyperlinking separate “torture memo” articles which I doubt most of their audience will read and I certainly won’t, with no reason to believe they have any bearing on the DACA ruling. What gets across clearly is Trump’s orders are bad, John Yoo is bad, and I must not agree with him, about anything, and if I do then *I* am bad.

But on Constitutional grounds he doesn’t like this precedent any more than they do, writing “the threat of non-enforcement gives the president improper leverage over Congress”; politically, he agrees with the Washington Post and seemingly every other newspaper about DACA: he likes it, it’s good.

The Post has a number of articles that recite the “torture memos” line but none I’ve read say what it has to do with DACA or its precedent, nor do any accurately acknowledge Yoo’s argument, which appears to be logical and supported by Roberts’ own words: which speak for the entire Supreme Court. I’ll restate Yoo’s argument for clarity here:

“Presidents can now stop enforcing laws they dislike, hand out permits or benefits that run contrary to acts of Congress and prevent their successors from repealing their policies for several years.” Successors will be prevented from repealing policies because the policies will be protected by the APA, even if they are illegal and unconstitutional, and will therefore be subject to arduous litigation.

In a roundabout way, Section 706 has just been rewritten. Presidents can sign executive actions that contradict laws established by Congress and go against the Constitution, and the APA will no longer be bound to “hold unlawful and set aside” these actions: to the contrary, they have been prohibited from doing so.

In fact, good practice dictates these other editors themselves understand Yoo’s point, in order to stop gross mischaracterizations like Marcus’s from being printed. I am intensely curious if they bothered to do this, or will rubber stamp anything that’s negative about the president. If they bothered to, then they knew she got it wrong and published it anyway. I cannot imagine a scenario where an editor would do this intentionally without malice or an agenda to mislead.

Conservapedia defines journalistic malpractice as “a term used to describe the once objective field of journalism which has now been reduced to ideology and slander … [The mainstream media’s] failure as a group willfully misleads, manipulates and distorts the public.” Does the shoe fit?

Here’s one that does: the Supreme Court issued a dubious ruling that redefines the very same rule that Roberts cites in his decision: as described above, Section 706 now means the opposite of what is written. Was Roberts reading his documents upside down? Additionally, presidents have been given legal grounds to kill just about any law by claiming prosecutorial discretion.

The Court opinion, coming as it does from one of the great legal minds of our time, makes little sense.  Dissenting Justice Clarence Thomas may have been right when he called the decision politically motivated, but if so the discussion of precedent has made it unclear which side the ruling would be intended to help.

Indeed it gives presidents more power over Congress and the judicial branch than any president has had before, and Trump is our president.