Trump’s anti-Dreamers position must fall

By
Laurence H. Tribe
-
47

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.

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47 COMMENTS

  1. For all of you who say I am a liar. Here is another lie. I attended Abraham Lincoln High School Class of 62. The same school Lawrence Tribe attended. He was a little earlier.

    • “Who knows himself a braggart, let him fear this, for it will come to pass that every braggart shall be found an ass.”
      ― William Shakespeare, The Complete Works

        • Correction:
          Inadequately specific.
          Maybe that word was considered unacceptable back in Shakespeare’s day.

      • jackie—Jeremiah 9:23 – Thus saith the LORD, Let not the wise [man] glory in his wisdom, neither let the mighty [man] glory in his might, let not the rich [man] glory in his riches:
        — god , the bible

          • Jackie–We will soon hear all about “Obamagate” soon. ( redundancy intended). And it must be very soon now, as the Obama haters have been telling us for months now that we will soon hear all the details of Obama’s crimes. At this point, I don’t care about the details, I would be happy to hear any of the allegations–Please– the wire tapping lie has been investigated and Obama has been completely exonerated.
            Next !

          • Ajay– come on buddy— since I am quoting from the christian bible, which is quoting the christian god, one might assume it is the christian bible and the christian god I am quoting..
            You can ask better questions than that.

          • You did not mention Bible.
            You did not mention Christian.
            The Book of Jeremiah is not in the Christian Bible.

    • Andrew,

      Sir, I am enthralled with the manner In which so many in this forum hang on your every word!!

      Why in the world are they are jealous? All one has to do is read their comments towards you, to see they are more than jealous. Perfect. You have them all, right in your pocket. Checkmate.

      Sadly for them, many people in this forum form communities that turn into “echo chambers” for their own views. When they never hear a dissenting opinion, they begin to assume that everyone thinks like them and that it is only right-wing extremists who disagree. These people have never spent any time in real America, and many have gone to schools and belong to institutions that just reinforce their monolithic group think. It is pretty depressing.

      ????

      :-^

      • Has anyone read this article? It is proof of how racist President and his administration are.

        Reality check for those who support the spreading of lies which can and does and already has led to the spreading of a deadly and highly contageous disease, not to mention the contuation of racist feelings and actions against others who are not white.

        A lie is not a “dissenting opinion”.

        No one is jealous of anyone who lies.

        Trying to expose a lie as a lie, even online, is a good thing, especially when it comes to misinformation and outright lies about science and facts about this administrations. Liars don’t “live, rent-free” inside anyone’s head.

        The ignorant, the stupid, the brainwashed, and those with self-serving, ulterior, authoritarian and facist motives will disagree. They are the ones who cannot think for themselves. They even plagiarize to prove it.

    • Fielding– wasn’t there some idiot a few years back that said he would pay “One millllllion dollars” for the release of Obama’s academic records ? I think it was the same guy that very publicly announced he had “dispatched” a team to go to Hawaii and come back with a “really big” or in trump parlance , a “bigly” story. Still waiting —-
      But to get back on topic, I wonder if Andrew , while he was waiting in a refugee camp for 9 years without his single mother for 3 of them, ever “dreamed” of coming to the United States. But, I guess, once you get here, you close the door behind you.

      • And just for the record, Obama never released those records, and in so doing, denied a very worthwhile charity the generous offer of one million dollars. And back to the topic, the problems the “dreamers” face are the result of their parents flaunting our immigration laws, pure and simple. They should not benefit from these crimes anymore than the children of a bank robber should benefit from a hold-up.

        • Seaman– have we seen trump’s academic record ?
          how about his taxes , that he repeatedly promised to release ?
          How about his military record– oh, right , we have a quack doctor —-
          Do you really think that a man of trumps character and honesty and blah blah blah would have ever actually ponied up the money ?
          HA that’s about as good as expecting Andrew to pay his debt, which will all be donated, by the way. –two peas in a pod as they say.
          “Andy and Donnie”– catchy, don’t ‘cha think ?
          And by the way , in case you missed it, Steven Colbert made an equally generous offer to trump, which trump declined.

          • Yes Don, I do believe President Trump would have paid the million to the charity of President Obama’s choice had those records been made public. But we all know they would be released because they would expose Barry Soetoro (aka B. Hussein Obama) in a number of frauds. Now back to the other point, why should the children of those who break our immigration laws be rewarded for their parents’ crimes?

          • Seaman, links please, and specifics, for where you get your “number of frauds” lie about Obama. The stupid old “sins of the father” argument falls flat for real Americans who experience empathy, not to mention those Americans who love and believe in the democratic ideals our country.

          • seaman– really? What on earth makes you think the guy who is even less honorable than Andrew when it comes to paying debts would actually donate money to a charity? Do you remember that trump promised to donate a million dollars to charity if Elizabeth Warren took a DNA test ?
            When she did and asked that he fulfill his promise “Trump told reporters later Monday afternoon that his bet only applied if Warren won the Democratic nomination.” Then he said he would “only pay if she did it on live tv during a presidential debate.”
            Andrew take notice to some of his excuses in the link below.
            https://www.cnbc.com/2018/10/15/elizabeth-warren-dna-test-she-urges-trump-to-fulfill-1-million-charity-pledge.html
            I really want to see a reply to that one, seaman..

        • Some people, unlike Trump, can not be bought.
          Some people go into bankruptcy, over and over and over again .

        • Seaman, many Jews escaped Nazi Germany with forged papers, some escaped to the US illegally. Want to deport all the children, now old people, for the sins of their fathers? Compassion is colorblind.

    • Wesley,

      “Andrew- you live rent-free in their heads.”

      Really good!

      ????????????????????????????????
      ????????‍♀️????‍♂️????????‍♀️????????‍♂️????????????????????????????????

      :-˄

    • drive– When trump loses ,I think the press will be very engaged with defending their right to exist under the assault of a tyrannical lame duck president.

    • When Biden wins, the world will weep with relief. To be rid of this fascist, racist, moronic monster who’s been responsible for the deaths and financial destruction of so many Americans will give new hope to all. Only then can we begin a unified and nationwide response to this awful plague.

    • Luckily, California & NY do not solely determine who becomes President…isn’ the Electoral College a wonderful gift from the Founding Fathers!

      • You like the fact that We the People’s vote in some states has more than twice the political value than in other states?
        Is that how you like to see democracy work.
        Do you see one man one vote to be a Communist idea?
        Putin wins his elections by getting the most votes from the people he allows to vote.
        He always gets the most votes.
        His people count therm.

          • Old enough to know that the Electoral College is anti-democratic.
            Old enough to know that our Founding Fathers included the racist Electoral College into our Constitution to draw the Slave States into our Union.

            How old are you?
            Do you have any of those 3/5ths of a person friends?
            Or just for day work.

            America owes a huge debt to slavery.
            Maybe we can finally pay it off in another 100 years

  6. “Every time you think he couldn’t possibly sound more maniacal or stoop lower, he proves you wrong. He’s a bottomless pit of sewage.”~Laurence Tribe, yesterday, on Trump’s speech that “Biden will hurt god” and the bible.

    https://www.youtube.com/watch?v=ahLj9YMrcSs
    The Thigh-Land, Yo-Semite moron who thinks Biden is not at the top of his game lies when he says Biden is against guns, god and the bible.

    https://www.washingtonpost.com/religion/2020/08/07/trump-hurt-god-biden-catholic-faith/
    Say, Wes, did you want to call Professor Tribe a “belligerent loudmouth” or is he too male to attack for saying the same things many women say? Or are you too busy supporting those who lie?

    • Sigh….It’s almost painful to have to explain something so basic to someone I assume is a literate adult. Whether I disagree or agree with Lawrence Tribe, he is capable of intellectual discourse that can expand beyond a narrow band of victim-chic talking points. This has nothing to do with his gender, race, religion, sexual orientation, etc. If I were to question his positions, he wouldn’t default to a strident victim mentality in which anyone who challenges him or holds him responsible for his behavior and choice of words is a privileged racist homophobic white male Christian. If one were to blend the strident braying of a jackass with the repetitiveness of a parrot they would approximate your contribution to these comment sections. You’re certainly free to continue to spew your tiresome rants on these threads- it’s the moderator’s job to decide what passes muster, and clearly emotional maturity and cogent thought aren’t prerequisites.

      • Glad you worked through your long-suffering “almost too painful” and managed to come up with even more sexist tropes. FYI, Wes, you were in trouble when you first thought it was reasonable to tell a grown woman you didn’t like her “tone”, without regard to context. Parents can speak to their kids that way, but when you entitle yourself to express these kinds of misogynistic images, it’s been all downhill for you and your “civil” comments.

  7. Let me put you out if your misery, Wes. It’s always, ALWAYS, a bad idea to tell a grown woman you don’t like her “tone”. This is how you began digging your misogyny hole with me, with zero regard to context or content of a single word I’ve written. For all I know, you despise Trump and his racism and ineptitude as much as I. It’s my delivery that drives you out of your sanctimonious comfort zone and into your uncivil use of sexist dog whistle words: shrill, histrionics, shrew, braying…
    Not liking my online personality because of my unkind approach to the bigots on here, and there are plenty for decent people to find intolerable, is no reason to let your inner sexist views get the best of you. When a parental figure tells his daughter, “I don’t like your tone, young lady,” that would be okay. Using it here, whether or not you admit it, is revealing of deep misogyny. You’ve jumped through hoops—not caring, not worth your time, pretending to be civil— to express your frustration and need to deny a reality of what you in fact have told us about how you approach a woman who routinely steps out of “feminine” behavior. Your reaction to me is like a sexist guy’s mother-nightmares. The problem is you. Ignore me, if my unfeminine anger at bigotry and idiocy upsets you so much. A smarter, less sexist person would do just that.

    • Apologize for repeating the same thoughts. I thought my first attempt was dismissed by moderators for being too blunt, so I cleaned it up. Turned out I simply hadn’t refreshed the page! Always good to put sexist comments in their proper place, though, so I’m not sorry for that!

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