DACA, Major Questions, Gundy, and the Non-Delegation Doctrine

Ilya Shapiro and I filed an amicus brief on behalf of the Cato Institute and Professor Jeremy Rabkin in DHS v. Regents of the University of California. We filed the brief “in support of DACA as a matter of policy but [the government] as a matter of law.” The caption caused quite a kerfuffle on social media. You should not judge a brief by its cover, we explained in a new SCOTUSBlog symposium essay:

Most Supreme Court amicus briefs are predictable. Groups that favor outcome A argue that the law supports outcome A. Groups that favor outcome B argue that the law supports outcome B. Occasionally, groups file cross-ideological briefs in which people of opposite political stripes unite to support a specific cause. But even these briefs fall into the same pattern: Regardless of ostensible ideological labels, all the groups on the brief support the policy outcome that the brief’s legal theory advances. . . .

We affirmatively support as a matter of policy normalizing the immigration status of individuals who were brought to this country as children and have no criminal records. (See Cato’s immigration work if you have any doubts.) Moreover, as a matter of first principle, people shouldn’t need government permission to work. But the president cannot unilaterally make such a fundamental change to our immigration policy — not even when Congress refuses to act.

Inside the brief, we advance an argument that was not presented, directly at least, by the government’s briefing in this case.

The attorney general reasonably determined that DACA is inconsistent with the president’s duty of faithful execution. Admittedly, the attorney general’s letter justifying the rescission is not a model of clarity. But it need not be. This executive-branch communication provides, at a minimum, a reasonable constitutional objection to justify DACA rescission. Specifically, it invokes the “major questions” doctrine – outlined by Justice Neil Gorsuch in dissent in Gundy v. United States – which is used “in service of the constitutional rule” that Congress cannot delegate legislative power to the executive branch.

Much to our pleasant surprise, after we filed the brief, President Trump addressed our position in his

You can read the rest of this article at: https://reason.com/2019/09/11/daca-major-questions-gundy-and-the-non-delegation-doctrine/