It is rare for presidents to offer public statements concerning ongoing litigation. When they do, they typically familiarize themselves with the government’s legal position, and consult with the array of highly sophisticated lawyers who work in the White House, before they offer their commentary. Presidents who don’t consult with their lawyers risk saying things that undermine their administration’s own litigation positions.
Alternatively, if you are President Donald Trump, you make official pronouncements based on something you just heard on Fox Business.
Department of Justice should have urged the Supreme Court to at least hear the Drivers License case on illegal immigrants in Arizona. I agree with @LouDobbs. Should have sought review.
— Donald J. Trump (@realDonaldTrump) March 21, 2018
Again, there’s a very good reason why presidents typically don’t announce new legal positions based on the views of nativist television pundits. When the government takes a new legal position, it has to consider how that position may interact with — and potentially undermine — the position it took in other cases.
The Justice Department has sophisticated systems in place to prevent one arm of the government from publicly contradicting another on an important legal question. Among other things, the federal government will not appeal a decision without the approval of the Solicitor General. That way, a government lawyer in one case does not urge a court to hand down a precedent-setting opinion that will undermine the administration’s position in a different case.
The Justice Department, however, cannot control a chief executive with a itchy Twitter finger, which brings us to the Arizona immigration case that Trump mentioned in his tweet.
American Dream Act Coalition v. Brewer is, in many important ways, a mirror image of a Trump administration lawsuit attacking various pro-immigrant laws in California. This Arizona case involves that state’s decision to forbid some, but not all, undocumented immigrants that the federal government has permitted to remain in the United States from receiving state drivers licenses. Notably, immigrants who benefit from President Obama’s Deferred Action for Childhood Arrivals (DACA) are one of the disfavored groups in Arizona.
The United States Court of Appeals for the Ninth Circuit struck down Arizona’s policy, explaining that it was an impermissible state intrusion into immigration policy — an area that is largely reserved to the federal government. Brewer is a complicated case, but it relies heavily on the Supreme Court’s holding in Plyler v. Doe that “the States enjoy no power with respect to the classification of aliens.”
By allowing some, but not all, of the undocumented immigrants permitted to remain in the United States to obtain drivers licenses, Arizona created a new “classification” among non-citizens. That’s not allowed.
Brewer in other words, stands for the proposition that the federal government generally reigns supreme in matters of immigration policy. In the words of the law, Arizona’s anti-immigrant policy is “preempted” by the web of federal immigration laws and policies determining which non-citizens are and are not permitted to live and work in the United States.
The Trump administration’s suit against California, known as United States v. California, rests on a similar legal theory. California passed a handful of laws which effectively make it more difficult for federal immigration officials to crack down on undocumented immigrants. One state law, for example, prohibits employers from giving “voluntary consent to an immigration enforcement agent to enter any nonpublic areas of a place of labor,” unless the federal agent “provides a judicial warrant.”
Significantly, this particular state law contains an exemption for immigration enforcement actions that are “required by federal law,” so there’s no argument that the California statute conflicts directly with federal law. Nevertheless, the Trump administration argues that it is preempted under a doctrine known as “obstacle preemption,” which blocks state laws that create “an unacceptable ‘obstacle to the accomplishment and execution of the full purposes and objectives of Congress.’”
There are subtle differences between the Brewer case and the Trump administration’s arguments in California. The Arizona decision, for example, largely rested on a doctrine known as “field preemption,” not obstacle preemption. Arizona’s policy is also vulnerable to attack under the Fourteenth Amendment, while the California law is not.
But Brewer and California are both fundamentally cases about the balance of power between the states and the federal government in matters concerning immigration, and a court deciding either case is likely to make broad pronouncements about the appropriate balance. A Supreme Court decision upholding Arizona’s anti-immigrant policy is likely to contain language that would undermine the Trump administration’s position in California.
It’s also worth noting why the Solicitor General advised the Court not to weigh into the Brewer litigation. The Ninth Circuit’s decision, the Solicitor General explained, has “been overtaken by events.” After Arizona’s attorney general sought Supreme Court review, the Trump administration “rescinded DACA and instituted an orderly wind-down of the policy.” This wind-down has been delayed by lower court decisions reinstating the DACA program, but those lower court decisions are unlikely to have staying power.
In 2016, when the Court had only eight members, it split 4-4 on the legality of an Obama administration program similar to DACA. The tie-breaking vote is now held by Neil Gorsuch, a rigidly conservative judge who is exceedingly unlikely to support DACA.
Thus, had the Supreme Court upheld Arizona’s anti-immigrant policy, immigration hardliners would have won a temporary victory. They likely would have moved up the date when Arizona can stop issuing drivers licenses to DACA beneficiaries by a few months, or even by a couple of years. In the process, however, they risked creating a legal precedent that undermined a high profile Trump administration suit against a leading blue state.
All of which is a long way of saying that there is a reason why presidents typically do not announce new legal positions on the fly because they were whipped into a frenzy by Lou Dobbs. By taking a stand in favor of states’ rights in the Arizona lawsuit, Trump undercuts his own administration’s arguments in the California lawsuit — just as Trump has frequently undermined his administration’s effort to defend his Muslim Ban by sending tweets that are inconsistent with the Justice Department’s legal arguments.
It is clear that Trump neither understands the legal arguments being made by his administration, nor cares to learn what those arguments are. That could make him California’s best friend in court.