One Promise Kept

Note: Posted on Tuesday, September 5, 2017, at 11:00 PM Pacific Time. The date tag is wrong.

It was one of those days that everyone wishes hadn’t been one of those days – even President Trump. He must be finding this “president thing” a pain in the ass. He made flamboyant campaign promises. Obamacare would be gone, fast, replaced by something “wonderful” – far better health care for absolutely everyone at a tiny fraction of the cost. Then someone explained the problem to him. Oops. He them said “nobody knew that health care was so complicated” – and then he said he knew everything about it, now.

He didn’t. The House didn’t come up with something “wonderful” – even Trump said it was “mean” – twenty or thirty million Americans losing their health insurance. The Senate couldn’t come up with anything at all. Trump then took to insulting Mitch McConnell – who insulted him right back. They stopped talking to each other – and then Trump went after the Republican senators who had messed things up for him. He’d support anyone who challenged those senators in the next Republican primaries. He’d ruin their careers – but he also kept tweeting about how useless the Republican Party was in general. Republicans! Who needs them? And all the while he seemed to know nothing about what was actually in those House and Senate healthcare bills that eighty-three percent of the American people found absolutely appalling. He didn’t really care. He just wanted something to sign into law. He had made a promise. He got nothing. He got angry.

It’s the same with that wall. Mexico won’t pay for it. His own Republican Congress won’t pay for it. In his angry Phoenix speech he said he’d shut down the government, if that was necessary, to get his own Republican Congress to pay for it. He wasn’t kidding – and then he quietly let his own Republican Congress know that the wall could wait. He’d bring it up later, after other matters were settled – funding government operations with a new budget, as the current one expires soon – just to keep the doors open. There won’t be a new budget – there’s too much to argue about – but a “continuing resolution” will do. Keep current funding levels in place for a few months – kick the can down the road.

The wall can wait – and the debt ceiling has to be raised too. American has to pay its bills now coming due – mainly interest payments on all the money the United States has borrowed and already spent. If the United States doesn’t pay at least the interest on its debt, if the United States defaults on those trillions of dollars in treasury bonds, the worldwide financial system collapses in chaos. No one wants that, other than a few Tea Party folks in House. Take care of that. The wall can wait. Donald Trump made a promise. That one will have to wait.

Other promises will have to wait too. Tax reform is unlikely. Rewriting the whole damned tax code is too damned complicated. It will probably be a few targeted tax cuts for corporations and the absurdly wealthy, to keep the stock market from crashing, out of sheer disappointment in their guy. As for the promised big infrastructure plan, to rebuild “crumbling America” and make it great again, there never was a plan. That was an intention – and other things came up. Those Americans who aren’t part of Trump’s dwindling base were appalled that Trump said that many “fine people” marched alongside the neo-Nazis in Charlottesville. Those Americans who aren’t part of Trump’s dwindling base were also appalled that Trump pardoned Joe Arpaio – the sheriff who defied federal court orders and kept abusing those who kind of looked suspiciously Hispanic, some of whom died in what he joked were his “concentration camps” in the Arizona desert.

Trump pardoned him? He did. He said that Arpaio was just doing his job – but all of this led to a week or more of Trump spending his time angrily explaining that he wasn’t really comfortable with fascists and that he wasn’t a bigot. He got very angry. Everyone misunderstood him. He doesn’t like Nazis, and he loves the Constitution with its bedrock rights for everyone, including Carlos and Juan and whomever. No, really – he does.

That sort of thing takes time. There was no time to keep those campaign promises from long ago, but he could keep one. Jeffrey Toobin, CNN’s in-house constitutional lawyer, explains what that was:

DACA stands for Deferred Action for Childhood Arrivals, which is a bureaucratic description of a vast American dilemma – that is, the fate of children who accompanied their parents when they illegally entered the United States.

Under existing law, before DACA, these children were just as subject to deportation as their parents, even though they were blameless in the decision to cross the border and most have known no other home besides the United States. What should be done with these children, who have become known, in an apt turn of political messaging, as Dreamers?

Obama had an answer, and Trump had an answer too:

Frustrated by the failure of Congress to address the fate of the Dreamers, the Obama administration in 2012 took unilateral action to protect them, for a while anyway. President Barack Obama created the program so the Dreamers could receive two-year renewable permits allowing them to live and work freely if they passed a background check. About 800,000 people signed up for DACA permits, and it is their fate at issue in the DACA debate.

On Tuesday, the Trump administration, through a statement by Attorney General Jeff Sessions, ended DACA, with an effective date of six months from now, purportedly to give Congress time to address the problem.

There’s not much chance of that, and that may not be their problem:

The Constitution gives the president broad powers when it comes to immigration. Since there are roughly 12 million people in the United States without proper papers, the federal government lacks the resources to try to deport them all. Accordingly, the government has every right to establish priorities for enforcement; DACA was simply a statement by Obama that he would put the Dreamers at the back of the line for deportation.

Repeal of DACA is a statement by President Donald Trump that the Dreamers may move up the line of possible deportees. Both presidents had the right to make these decisions.

The question, then, about DACA is not one of law but of politics.

In other words, the issue is not whether presidents can protect Dreamers – they can – but whether they should.

That’s the problem here:

The Dreamers are not, by definition, threats to the safety of their fellow residents of the United States. They are individuals who are trying to make their way in the same way as the American citizens they have lived besides for most of their lives.

The Dreamers are students, soldiers, employees and some are now the parents of American citizens. They made no choice to violate immigration law, and they have not, in the vast majority of cases, imposed burdens on the only home they’ve known.

Through the attorney general, Trump has thrown the Dreamers’ fate in the lap of Congress, pretending that he lacks the authority to protect them. But this uncharacteristic assertion of weakness by Trump is just a political dodge. He has the authority but doesn’t want to take the heat for making a decision one way or the other.

He punted, but that changes nothing:

Handing off the decision to Congress, which has shown itself unwilling to address the issue of Dreamers, is a decision itself. It’s a decision to expose the Dreamers to an uncertain and perhaps disastrous future. And that judgment may haunt the nation’s conscience for decades to come.

That made it one of those days that everyone wishes hadn’t been one of those days. Donald Trump actually kept one of his campaign promises, but the lead story on this in the New York Times adds the complications:

Mr. Trump and Attorney General Jeff Sessions, who announced the change at the Justice Department, both used the aggrieved language of anti-immigrant activists, arguing that those in the country illegally are lawbreakers who hurt native-born Americans by usurping their jobs and pushing down wages.

Mr. Trump said in a statement that he was driven by a concern for “the millions of Americans victimized by this unfair system.” Mr. Sessions said the program had “denied jobs to hundreds of thousands of Americans by allowing those same illegal aliens to take those jobs.”

Everyone agreed that was bullshit:

Protests broke out in front of the White House and the Justice Department and in cities across the country soon after Mr. Sessions’ announcement. Democrats and some Republicans, business executives, college presidents and immigration activists condemned the move as a coldhearted and shortsighted effort that was unfair to the young immigrants and could harm the economy.

It wasn’t pretty:

“This is a sad day for our country,” Mark Zuckerberg, the Facebook founder, wrote on his personal page. “It is particularly cruel to offer young people the American dream, encourage them to come out of the shadows and trust our government, and then punish them for it.”

Former President Barack Obama, who had warned that any threat to the program would prompt him to speak out, called his successor’s decision “wrong,” “self-defeating” and “cruel.”

“Whatever concerns or complaints Americans may have about immigration in general, we shouldn’t threaten the future of this group of young people who are here through no fault of their own, who pose no threat, who are not taking away anything from the rest of us,” Mr. Obama wrote on Facebook.

Once again, Donald Trump realized his mistake:

Just hours after the angry reaction to Mr. Trump’s decision, the president appeared to have second thoughts. In a late-evening tweet, Mr. Trump specifically called on Congress to “legalize DACA,” something his administration’s officials had declined to do earlier in the day.

Mr. Trump also warned lawmakers that if they do not legislate a program similar to the one Mr. Obama created through executive authority he will “revisit this issue!” – a statement sure to inject more uncertainty into the ultimate fate of the young, undocumented immigrants who have been benefiting from the program since 2012.

He may want to say he was just kidding, but he was just confused:

The president’s wavering was reflected in a day of conflicting messages from him and his team. Hours after his statement was released, Mr. Trump told reporters that he had “great love” for the beneficiaries of the program he had just ended.

“I have a love for these people, and hopefully now Congress will be able to help them and do it properly,” he said. But he notably did not endorse bipartisan legislation to codify the program’s protections, leaving it unclear whether he would back such a solution.

Yes, he might veto whatever they come up with, or not:

Mr. Trump’s aides were negotiating late into Monday evening with one another about precisely how the plan to wind down the program would be executed. Until Tuesday morning, some aides believed the president had settled on a plan that would be more generous, giving more of the program’s recipients the option to renew their protections.

They were wrong, and there was this:

Sarah Huckabee Sanders, the White House press secretary, indicated that Mr. Trump would support legislation to “fix” the DACA program, as long as Congress passed it as part of a broader immigration overhaul to strengthen the border, protect American jobs and enhance enforcement.

“The president wants to see responsible immigration reform, and he wants that to be part of it,” Ms. Sanders said, referring to a permanent solution for the young immigrants. “Something needs to be done. It’s Congress’s job to do that. And we want to be part of that process.”

In short, he won’t sign any legislation that just fixes the DACA thing – the legislation has to fix everything about immigration, in one big package. It probably has to be “wonderful” too – just like the Obamacare replacement. He’s in over his head:

The blame-averse president told a confidante over the past few days that he realized that he had gotten himself into a politically untenable position. As late as one hour before the decision was to be announced, administration officials privately expressed concern that Mr. Trump might not fully grasp the details of the steps he was about to take, and when he discovered their full impact, would change his mind, according to a person familiar with their thinking who was not authorized to comment on it and spoke on condition of anonymity.

But ultimately, the president followed through on his campaign pledge at the urging of Mr. Sessions and other hardline members inside his White House, including Stephen Miller, his top domestic policy adviser.

He decided to keep at least one promise – for now – he may “revisit” this later.

Promises go both ways, however, and Slate’s Mark Joseph Stern notes this:

To receive DACA benefits, applicants had to turn over a huge amount of personal information to the government. Now the government will provide this information to immigration enforcement agents if they ask for it. Undocumented immigrants who applied for DACA placed an enormous amount of faith in the government. On Tuesday, the government revealed it will betray their trust.

But there’s nothing new here:

President Donald Trump has performed this kind of bait-and-switch before. In July, the president announced he would ban transgender individuals from the military just one year after the Pentagon invited transgender troops to serve openly. Transgender service members who revealed their gender identity may soon be purged based on information they provided. DACA beneficiaries and transgender service members thus find themselves in the same bind: encouraged to provide sensitive information to a government that may now use that information against them.

This duplicity is plainly unfair – so radically unfair, in fact, that it may cross a constitutional line.

That is a real issue:

The Supreme Court has long said that the Constitution’s Due Process Clauses enshrine certain principles of fundamental fairness, including the assumption that individuals can reasonably rely on the government’s promises. In 1959’s Raley v. Ohio, the court deployed this doctrine to reverse the conviction of several people who testified before Ohio’s Un-American Activities Commission. While the commission allowed these witnesses to assert their privilege against self-incrimination, the state later prosecuted them for refusing to answer questions. To sustain these convictions, the court explained, this “would be to sanction the most indefensible sort of entrapment by the State – convicting a citizen for exercising a privilege which the State clearly had told him was available to him.” Due process protected the witnesses from punishment.

And there’s this:

In 1965’s Cox v. Louisiana, the court drew upon Raley’s reasoning in overturning the conviction of a civil rights protester. Police officials had informed the man – the Rev. Ben Elton Cox Sr. – that the law permitted him to protest across the street from a courthouse. But when he held a demonstration in that precise spot, he was arrested, charged, and convicted of obstructing public passages and breach of the pass. The Supreme Court reversed the conviction, holding that it constituted entrapment in violation of due process.

Now we have the same thing:

These cases revolved around criminal prosecutions, whereas the trans ban and DACA involve civil disputes. But as law professor Zachary Price has argued, the same basic principles should apply when the government coaxes individuals into offering up sensitive, potentially damaging information. The Trump administration, Price wrote, “cannot use information from these immigrants’ own DACA applications against them.” The government’s “request for information based on promise relief” undoubtedly “invites reliance” in a constitutionally significant manner reminiscent of Raley and Cox.

Price put that this way:

Had DACA never existed, the government would have had to do gumshoe detective work to identify and apprehend DACA beneficiaries. It shouldn’t be spared that burden by virtue of having tricked those same immigrants with false promises of relief. To allow the government to perform such a bait and switch would be an outrageous form of entrapment that the Due Process Clause should prevent.

Stern says this is quite simple:

DACA recipients turned over their personal information based on the government’s promise not to use it against them. And while deportation is not technically a criminal matter, the Supreme Court has recognized that it can be more severe than criminal penalties. Under Raley and Cox, then, DHS should be barred from sharing any DACA information for the purposes of initiating or assisting in deportation attempts.

Opponents of Trump’s trans ban have made a similar argument. In their motion to block the policy, the National Center for Lesbian Rights and LGBTQ Legal Advocates & Defenders assert that any adverse action against trans troops would infringe upon their due process reliance interests. “Many transgender service members publicly identified themselves as transgender, undertook medical treatment, and changed their gender markers” in response to the Pentagon’s trans-inclusive policy, the motion explains. They “came out as transgender to their chain of command in reliance on official policy. The profound unfairness of now penalizing them for doing so” runs afoul of the “due process guarantee against unjustly penalizing those who reasonably rely on the government’s representations.”

So let’s go to court:

When the Supreme Court addresses reliance interests, it often speaks broadly with few helpful guidelines. But at a minimum, the court has clarified that laws which “unsettle expectations and impose burdens on past conduct” may run afoul of due process. Trump’s transgender ban would seem to fall into this category. In addition to being arbitrary and malicious, the policy would punish service members who came out because the Pentagon encouraged them to do so. This betrayal of trust only exacerbates the ban’s troubling constitutional infirmities.

As a general matter, new presidents get to reverse the policies of their predecessors. Trump can, for instance, lawfully repeal an executive order barring LGBTQ discrimination by federal contractors, and he has already revoked a rule that protected equal pay for women. But when these reversals hurt individuals who relied on the old rules, the Constitution may limit the president’s leeway.

Trump can kill DACA, but his administration should be barred from using DACA data to punish its former beneficiaries. And though Trump is commander in chief, he should not be able to purge troops who revealed their gender identity at the invitation of his precursor. Presidents come and go, but due process will always place limitations on executive caprice.

That’s been true so far, and one should always keep one’s promises, but here there was Trump promise to his base and the government’s previous promise to the dreamers. They’re in conflict, and Robert Costa and Philip Rucker review the difficulties:

Trump has temporarily placed the fates of roughly 800,000 undocumented immigrants brought to the United States as children in the hands of Congress, buying himself time and shunting responsibility.

Should Congress act, the president will have to choose whether to sign on to a legislative solution granting the “dreamers” legal status – or to let the Deferred Action for Childhood Arrivals program, known as DACA, expire, which would impede the ability of beneficiaries to find work and leave them vulnerable to deportation.

The choice cuts to the core of his presidency and could have long-term ramifications for the Republican Party.

“From a Republican Party point of view, this is a defining moment,” Sen. Lindsey O. Graham (R-S.C.), co-author of a bipartisan Dreamers’ bill, told reporters Tuesday. As if addressing Trump, Graham added, “You have a chance to show the nation, as the president of all of us, where your heart’s at.”

Who knows where his heart is at, if he has one, but he does have this:

Trump’s hardline base – which demands purity and expects results – recoils at DACA as illegal amnesty and will look to him to veto any such legislation. But allies said Trump also is eager to prove that he has the “great heart” he has touted, and he is under pressure from his party’s establishment, the business community and many of his own advisers to find a way to let dreamers stay.

There may be too many promises to keep, and he’s not alone:

The president’s punt created chaos at the other end of Pennsylvania Avenue, where it now falls to congressional Republicans to navigate a thicket of political interests and charged emotions amid a busy September as they try to keep the party’s base from revolting and still appeal to Hispanic voters.

But Donald Trump did make a campaign promise, and he kept this one, but reserving the right to change his mind. He must be finding this “president thing” a pain in the ass. And all those congressional Republicans must feel the same way – they finally got a Republican president, who does what he said he’d do, and he’s a pain in the ass. Perhaps it’s best not to make promises at all.