In Department of Homeland Security v. Regents of the University of California, 591 U.S. ____ (2020), Chief Justice John Roberts struck down the actions of the Department of Homeland Security revoking the prior administrative actions popularly known as “DACA” (“Deferred Action for Childhood Arrivals”). The DACA program, established in 2012 and expanded in 2014, allows individuals who came to the United States illegally as children to defer their deportation and, having done so, regularize their immigration status. The program came to include access to benefits. Shortly after President Trump took office in 2017, the Department of Homeland Security rescinded its DACA orders. The Supreme Court struck down these rescissions, not as exceeding the government’s power, but as failing to comply perfectly with the Administrative Procedure Act.
The scholar John Yoo has argued that the Supreme Court’s decision has created an incentive for Donald Trump to defy the law in all sorts of ways. But I think the consequences are more serious than that. The decision turns the federal judiciary, especially district judges willing to issue nationwide preliminary injunctions, into a rival to the president for the leadership of the state. But the proliferation of district courts and circuit courts does not point to a clear single rival. This is an especially significant, serious development, since the classical legal tradition draws a clear connection between the commonwealth and unitary leadership of the commonwealth.
It is fairly clear that no one, least of all Donald Trump, intends mass deportations of people who were brought to the United States as children and have made lives here. It seemed pretty clear that the DACA order was a bargaining chip: Trump counted on the Democrats’ horror of deporting the so-called Dreamers bringing them to the negotiating table for a broader immigration deal. Such tactics are not uncommon in politics today, even if they are not morally creditable. It didn’t quite work as he planned. The Democrats refused to come to the bargaining table.
Lost in the outrage over Trump’s DACA order was the concrete fact that the DACA program was established by executive action—and under similar circumstances. Between June 2012 and November 2014, the Department of Homeland Security, under President Obama, took certain actions that established the DACA program. The Obama Administration acted when it became clear that Congress was unable (or unwilling) to address the matter through legislation. The Obama-era actions were challenged in court by a variety of states, which obtained a nationwide preliminary injunction that was upheld by the Fifth Circuit and the Supreme Court.
According to Chief Justice Roberts, while Elaine Duke, then the acting head of the Department of Homeland Security, properly considered the legal advice of Jeff Sessions, then the attorney general, regarding the legality of the expansion of benefits, she failed to consider her own discretion on how to move forward from a finding of illegality. She also conflated the Attorney General’s advice on the question of benefits with the question of removal. However, Justice Kavanaugh explains in dissent the Court’s standard shows basically no deference to the agency action or the explanation offered by Kirstjen Nielsen, then the secretary of Homeland Security, in a subsequent memorandum.
A note: one need not endorse the moral dimension of the DACA case to consider the consequences. The bishops of the United States have been outspoken in their solicitude for the children benefitted by DACA. Indeed, the bishops have been outspoken opponents of the immigration proposals floated by Donald Trump. Catholics ought to obey their bishops’ teaching in all matters, especially the politically explosive, presuming that the bishop is orthodox and in communion with Rome and all that. The Census case raises all of the questions of judicial review of administrative actions in more or less the same dimension as the DACA case. One could, therefore, have this discussion without reference to DACA and the bishops’ teaching. However, the DACA case has been more recently decided and is the subject of ongoing controversy in the press.
And rightly so. The consequences of the DACA case have yet to be fully anticipated. There is a high likelihood that they will be entirely unanticipated, in fact. Writing at National Review, John Yoo has argued that Chief Justice Roberts’s decision creates a perverse incentive for the executive to break the law. Yoo makes the argument that, even though the courts have found that the Obama Administration exceeded its power in 2012 and 2014 when it issued the initial DACA regulations, the upshot of Chief Justice Roberts’s opinion is that the Trump Administration had to treat them as legal and valid for purposes of rescinding them. This is, Yoo argues, a significant restriction on executive power: one president can bind another, effectively, even if what he does is illegal.
To put it another way: Yoo argues that Chief Justice Roberts has empowered one president to bind another and thereby diminished the power of Donald Trump vis-à-vis Barack Obama. Likewise, Donald Trump can bind Joe Biden (or whoever succeeds him) in the same way. Maybe so. But Chief Justice Roberts’s opinion actually represents a more serious challenge to executive power—indeed, to the state itself. The upshot of the DACA case (and the census case, which was also decided by the Chief Justice) is that the executive branch has done something entirely permissible but in a shoddy way. The judgment of the Supreme Court is not that the Department of Homeland Security acted ultra vires, but that they didn’t tick all the boxes in the right way on the way to doing something entirely within their power. One might even go so far as to describe Chief Justice Roberts’s approach to the Administrative Procedure Act as strict scrutiny.
The Constitution establishes the president as the supervisor of the executive branch: he appoints the inferior officers, he can demand their views on questions before him, he can remove inferior officers, and he takes care that the laws are faithfully executed. A strict-scrutiny approach in the courts to administrative acts in the executive branch, however, strips this power, in effect, from the president. If the question about an executive act is fundamentally qualitative—how well did the officer do?—and it is the judge who decides, then the judge becomes the supervisor of the executive branch. In fact, the consequences are more serious than that.
The principle that there is only one leader in the state is not controversial in the classical legal tradition. One finds it in Aquinas repeatedly, for example. In the De regno, Aquinas argues that the purpose of government—to procure the unity of peace—is far better served by one ruler than by many (DR I.3.17; see also SCG III.146.5). To make the argument, Aquinas turns to nature, arguing that whatever nature does is best and natural government is government by one alone: just as one bee rules a hive, One God rules the universe (DR I.3.19). And in his defense of mixed government in the Summa theologiae, Aquinas emphasizes the importance of one leader (ST I-II q.105 a.1 co. & ad 2).
It is important to note Aquinas’s connection the very idea of a commonwealth and a leader of the commonwealth. Elsewhere in the Summa (II-II q.42 a.2 co.), he points to Augustine’s definition of a commonwealth from De civitate Dei (DCD 2.21). Augustine’s definition itself points back toward classical sources, namely Cicero (De re publica 1.25.39). It is noteworthy that Cicero puts his definition of the commonwealth in Scipio’s mouth. Elsewhere in the De re publica, even in the context of a defense of the mixed constitution of the Roman state, Scipio praises kingship (De re publica 1.35.54–55; 1.39.61–40.62; 1.45.69). Indeed, Cicero’s Scipio makes the point that in peace, the Roman people are accustomed to disobey the magistrates and appeal from one to the other (or to the people), but in cases of war, they obey their rulers as kings—and in serious wars prefer to hand over power to one man (De re publica 1.40.63).
Augustine was not quoting De re publica at random when he took up Scipio’s definition of a commonwealth in De civitate Dei. In particular, Augustine was fully aware of book five of De re publica, quoting the first section at length and noting that Cicero himself was speaking there, not the characters in his dialogue (DCD 2.21). While it comes down to us in fragments, it appears that book five of De re publica was a long description of the ideal statesman (e.g., De re publica 5.4.6). This ideal statesman is the rector rei publicae and the moderator rei publicae. One can draw a connection between this and Scipio’s praise of the single ruler of the state. It is impossible to say, therefore, that Augustine could take up Scipio’s definition of a commonwealth without the concept of a leader of the commonwealth. And indeed he does not (DCD 19.16–17) even as he challenges the reality of that definition (DCD 19.21).
The idea of one leader of the commonwealth finds support in the canonical tradition, too. For example, Gratian’s canon In apibus (C.7 q.1 c.41) makes the same connection Aquinas made in the De regno. Just as there is one bee in a hive, one emperor in an empire, and one judge in a province, so too is there one bishop and one archdeacon in a particular church. The canon, an addition in the second recension (the first recension goes straight from C.7 q.1 c.39 to C.7 q.1 d.p.c. 41), is taken from a letter of Pope Pelagius II to the monk Rusticus. All of this is to say that the Church’s teaching—indeed, the whole classical legal tradition—supports the principle that there is only one leader in the state.
If the judge is empowered the determine how well an executive official does something entirely within the official’s authority, then there is no room for the president to administer the executive branch. The appeal to the judge, in fact, becomes a process of seeking to strip the president of his leadership. Indeed, one may say that the president’s leadership becomes so contingent as to be nonexistent. The use of nationwide injunctions—first to block the Obama Administration’s DACA regulations, then to block the Trump Administration’s rescission of the DACA regulations—demonstrates clearly the expansion of the district judge’s power well beyond the territory for which the judge was appointed and confirmed. If this were the end of the matter, it might be regrettable but tolerable: a judge is probably as good as a president. But this transfer of leadership is not so stable at it might appear.
If the president must satisfy every district judge in the United States that all of his deputies have followed the Administrative Procedure Act flawlessly, then it is obvious that the president has no meaningful leadership of the state. Worse than that, it is an open question whether there is any leadership of the state. There are ninety-four district courts in the country, most if not all with multiple judges. Add to this thirteen circuit courts of appeals, all with multiple judges, and the nine justices of the Supreme Court. Nationwide injunctions and expedited appeals offer unlimited opportunities for judges to strip the president of his leadership and supervise the executive branch, and their decisions can be reviewed and stayed and remanded to the heart’s content. The president is not the leader of the state—and neither is anyone else.
The commonwealth, as Cicero and Augustine, Aquinas and Gratian all attest, needs a leader. There is a connection between the commonwealth and the leader of the commonwealth. One can idealize the rector rei publicae to a greater or lesser extent, of course. However, to dissolve the leadership of the state altogether is in a meaningful way to dissolve the state. Perhaps, as Cicero argues, in times of peace this is not such an intolerable situation. Certainly the phenomenon of appealing from one authority to another is not new. But in times of the highest need, when most reasonable men agree that one man ought to act to preserve the state (and act quickly), it is a disaster. This is, however, just what one does when one invokes the judge as leader of the state against the president.
It is entirely possible that the Supreme Court’s decision in the DACA case (and the Census case before it) represents a purely political effort to restrain the Trump Administration’s worst impulses. One assumes, then, that the decisions will have limited precedential value, that the strict-scrutiny approach to administrative actions will be abandoned as easily as it was adopted. The danger of the transfer of leadership becomes minimal—nonexistent, even. And certainly there are reasons to believe that the Supreme Court sees itself in the age of Donald Trump as a unique moderating force. But one does not get to write the future, and the history of American jurisprudence is marked by a number of decisions that were taken well beyond the intentions of the judges who wrote them.
Pat Smith
