The Washington PostDemocracy Dies in Darkness

Trump thinks the law doesn’t restrain him. The Supreme Court just agreed.

The court’s DACA decision muddied the waters in ways that invite Trump’s lawlessness

President Trump prepares to sign four executive orders during a news conference in Bedminster, N.J., on Saturday. (Susan Walsh/AP)
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Over the weekend, President Trump issued four executive orders, asserting power to defer payroll taxes and provide expanded unemployment benefits, among other things, all without going to Congress. These actions are alarming enough: They effectively seek an end-run around Congress’s “power of the purse,” which enables the legislature to dictate what taxing and spending the executive branch may pursue.

But Trump has threatened to go even further. He told Fox News last month that the Supreme Court gave him “powers that nobody thought the president had.” Trump appears to believe that the Supreme Court’s decision in June barring him from rescinding the Obama administration’s Deferred Action for Childhood Arrivals immigration program gives him the unilateral authority to suspend federal payroll taxes altogether, or cancel Obamacare coverage requirements, legal limits on immigration policy and any other laws he dislikes.

The presidency does not properly hold such sweeping powers. The policies the president appears to be contemplating would be illegal and unconstitutional. Unfortunately, however, the Supreme Court’s DACA decision did muddy the waters in ways that invite this sort of lawlessness.

Trump’s executive orders underline all the failures of his administration

The best way to understand the decision’s problems is through the actual DACA program. With DACA, the Obama administration invited a large category of unauthorized immigrants who entered the United States as young children and met certain criteria to apply for renewable two-year grants of “deferred action.” Deferred action is essentially a promise from the government not to seek deportation, though it also carried other benefits.

The administration justified DACA as an exercise of prosecutorial discretion, no different from a cop turning a blind eye to a speeding car. But it was actually more than that.

Administrations are allowed to set enforcement priorities within the bounds of existing law. When officials lack the time and money to pursue every infraction, they can prioritize people they consider most culpable or dangerous. Yet DACA, by design, went beyond such prioritization and sought to provide a more specific guarantee that an entire category of unauthorized immigrants would be untouchable by the law.

This extra step was unlawful, and liberals were playing with fire when they asserted that President Barack Obama had this power to deliberately recast the law. They should have appreciated that it serves their interests when presidents must respect the binding force of laws on the books, even if the government is not actively seeking penalties against all those who violate them. A president like Trump might otherwise be inclined to suspend any number of laws — from environmental and labor regulations to laws regarding guns, banking and public corruption, not to mention the payroll taxes, Obamacare requirements and immigration rules that are now on his mind.

If an administration adopts extreme nonenforcement policies of this sort and they don’t get overturned in court — something that is often difficult for technical reasons — there is supposed to be another ultimate safeguard: that the next administration generally can disregard the old policy and enforce the law against those who violated it.

We can’t manage uncertainty and risk without a functioning government

For example, if Joe Biden wins in November, his administration should be free to throw the book at any polluters, fraudsters or tax cheats who took liberties based on an expectation that the Trump administration would not come after them. And if Trump says his administration won’t enforce taxpayers’ obligation to remit payroll taxes after the current deferral ends — or if he says he’ll allow the sale of illegal health plans, or possession of banned weapons, or any other illegal action — then those who take him up on his offers should know they are still taking their chances. This risk of future enforcement is an important way the law remains binding on the public even if a given president doesn’t like what the law says.

By preventing Trump from undoing DACA, the Supreme Court’s decision cast doubt on this vital principle that enforcement policies adopted in one administration can be undone in the next.

Even worse, the court faulted the administration specifically for failing to consider how rescinding DACA would disrupt beneficiaries’ expectations. But that is exactly the argument a polluter or tax cheat would make if Trump adopted a permissive policy and a future administration rescinded it. Much like jilted DACA participants, those individuals might plausibly claim that they made choices in reliance on the former policy and now faced ruin.

Fortunately, the court’s opinion can be read narrowly to avoid these problems. Though no detailed process should have been required to rescind DACA, the opinion emphasized the intricacies of the rescission process in this case, which was rather shambolic. The court also included various hedges and escape hatches in its reasoning, telegraphing to lower courts that it did not intend to establish any broad precedent.

But courts are supposed to decide cases based on general legal principles, not ad hoc political judgments. Resolving a high-profile case on such narrow, case-specific grounds invites speculation that the Supreme Court bent and twisted the law to reach a politically popular outcome.

The Justice Department isn’t just corrupt. It also bungled the pandemic.

In this era of intense political division, the country needs clear ground rules about how laws and policies may validly change through the political process. With respect to DACA, that should have meant that the Trump administration could undo by fiat what the Obama administration adopted by fiat. By departing from that principle, the Supreme Court called into question an essential limit on executive power and risked encouraging the sort of lawlessness that Trump is apparently contemplating. We can only hope that the more limited orders Trump signed this weekend mean he will not take us further down this path.

"Dreamers" gathered outside the Supreme Court on Thursday, June 18, to celebrate the Supreme Court's decision to uphold DACA. (Video: The Washington Post)
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