By: Lawrence M. Friedman Professor Eric Posner recently explained a dilemma the federal courts face in the wake of President Trump’s election: how to check unconstitutional excesses while, at the same time, respecting the deference afforded “the president on national-security matters” in light of the president’s ability to act “on the basis of classified information,” coupled with the “need to move quickly.” That deference turns on a level of trust of the executive that courts, as exemplified by the unanimous decision of the Ninth Circuit Court of Appeals in State of Washington v. Trump, may not hold. Posner warns of the possibility that the president, faced with many such decisions, might defy the courts. This raises the question whether the possibility of defiance, in itself, justifies adhering to the traditional deference the courts accord national security decision-making.
United States v. Texas. The case involves the arguments put forward by twenty-six states, challenging the President’s November of 2014 Executive Action, which could have made around 5 million parents of citizens and lawful permanent residents (known as DAPA) eligible to apply to have their deportation deferred. It would also have slightly expanded the class of pre-existing eligibility for deferred action for childhood arrivals (DACA), already in effect since 2012. The mechanism through which executive action would take place is the President’s request that his subordinates within the prosecutorial arms of DHS to exercise their prosecutorial discretion in determining where and how to use and focus limited deportation resources. Congress enacted the Immigration and Nationality Act, tasking the agencies with enforcing immigration, but provides insufficient funds for the agencies to carry out their mandates. The Executive must then make decisions about how to prioritize those mandates. Neither DAPA nor the expanded DACA class confers anything other than the eligibility for certain persons to apply for time limited deferral from removal. With deferred action, under a different set of pre-existing regulations, passed under earlier Congresses and presidents, comes eligibility for work authorization.