President Trump acts like a petulant child, throwing tantrums, lobbing insults, even refusing to eat his veggies. Now his Department of Homeland Security (DHS) is following suit. When adults on the Supreme Court gave a clear directive, he and his DHS cronies crossed their arms, pouted, and simply said no.
Donald Trump crashed into office on a wave of xenophobia. A campaign that began by calling Mexicans “rapists” crystalized around a concrete promise to end Deferred Action for Childhood Arrivals (DACA), an Obama program that delayed deportation and granted work authorization to undocumented individuals brought to this country as innocent children.
He tried to fulfil his promise soon after taking office. In September 2017, his DHS secretary issued a memo purporting to rescind DACA.
But the attempt failed. This past June, the Supreme Court declared the memo invalid, treating it as an executive order and finding it “arbitrary and capricious.” The court’s decision revived the version of DACA that existed before Trump’s rescission attempt. Two lower courts made this explicit in the weeks after the Supreme Court’s decision, unequivocally declaring that “the policy is restored to its pre–September 5, 2017, status.”
The court reached the legally correct outcome. Chief Justice Roberts’s narrow decision rightfully chastised the administration for its sloppiness. While the chief justice rejected the challengers’ constitutional arguments to the effect that the rescission was substantively vulnerable on equal protection grounds because racially motivated (arguments I would have joined Justice Sotomayor in accepting), his decision saved a program that 80 percent of Americans support, including a majority of Republicans. This was a characteristically consensus-seeking determination from a chief justice who has masterfully guided the court through its most contentious cases.
The court reached the morally correct outcome as well. DACA recipients embody the American dream. That’s why we call them Dreamers. I helped represent the Dreamers in this litigation — from the trial level to the Supreme Court — and delighted in celebrating, together with many of the Dreamers we represented and many I will never meet (including many on this Island), what I regarded as an important victory.
But instead of restoring DACA, the Trump administration, with a wink to its racist supporters, “restored DACA.” It refused to take some DACA applications. It functionally denied the applications it did take by refusing to adjudicate them. It refused to be transparent with DACA applicants and recipients by, for example, keeping outdated information on its website.
Judges and commentators began to object. After an embarrassing scene in which a government lawyer was caught in a lie about the administration’s defiance of the Supreme Court, the administration applied a legal veneer to its action with a memo by Acting Secretary of DHS Chad Wolf. This masterpiece of misdirection deserves to be unpacked.
First, Wolf’s authority to issue anything at all is dubious at best. The president may well have violated succession rules when he placed Wolf at the head of the department. This would render his memo (and many of his other actions) legally void.
Second, the memo obscures the major new restrictions it imposes. While it is accurate to describe the memo as limiting permits and initiating a review of the program, such reporting obscures the extent to which Wolf’s memo guts DACA.
Finally, the memo purports to justify the administration’s defiance by applying its newly announced policies to all pending applications. But these applications should not be merely pending. They should be acted upon immediately, not left in limbo. The court ordered DACA opened for business. In defiance of this directive, the administration dragged its feet. Now it is opening its doors a crack, but changing its business model: Instead of welcoming Dreamers, it is spitting in their faces.
I am once again appalled at Trump’s disdain for the rule of law. I am also deeply saddened. I bring my moral compass with me when I enter the legal arena. I am not ashamed to admit that my zealous advocacy on the Dreamers’ behalf was shaped in part by my sense of moral right and wrong, and not just by my parsing of the legal technicalities. Legal technicality in service of human decency is part of what drove me to the law, and part of what energizes me to this day in pursuing legal remedies for vulnerable individuals otherwise at the mercy of the merciless and the heartless.
But while I don’t check my heart at the courthouse door, I don’t leave my brain behind either. Nor does the chief justice, a former student with whom I don’t always agree, but of whom I remain enormously proud. In striking down the Administration’s shoddy attempt at rescinding DACA, he once again sent a message: “The government should turn square corners in dealing with the people.”
The administration, however, refuses to stop cutting corners. Apparently, it even refuses to read. Its outright defiance of court orders makes it seem, as my co-counsel Mark Rosenbaum of Public Counsel put it, “as if a Supreme Court decision was written with invisible ink.”
Trump has shown himself unwilling to learn and incapable of remorse. We cannot impose discipline on this disobedient administration. Instead, we must expel this delinquent from the White House in November.
Laurence Tribe is the Carl M. Loeb University Professor of Constitutional Law Emeritus at Harvard, and a frequent Vineyard visitor. He is the author of numerous books, including the leading modern treatise on the American Constitution, and has argued dozens of cases in the U.S. Supreme Court. Follow him @tribelaw.