Did the DACA Ruling Bury Constitutionalism?

By Mark Krikorian on August 10, 2020

National Review, August 10, 2020

In reacting to President Trump's recent executive orders, Jim Geraghty asks "Do Americans Even Care If There's a Constitution?" He reluctantly suggests that the answer is "no."

This didn't happen all at once — Woodrow Wilson was probably the first notable to explicitly express the progressive frustration with the Constitution's system of limited powers. Decades of preposterous Supreme Court rulings, such as Roe, Obergefell, and Bostock, have made plain the Left's contempt for constitutional governance. And to Jim's question, "Did the education system fail them so thoroughly that they can't even begin to grasp why concentrated government power would be a bad thing?" the answer, of course, is yes; Exhibit A is Ezra Klein (a college graduate, mind you) burbling that "the Constitution is not a clear document. Written 100 years ago, when America had thirteen states and very different problems, it rarely speaks directly to the questions we ask it."

Obama's pen-and-phone activity, most notably his administration's decree unilaterally rewriting immigration law by creating the DACA amnesty (and attempting to create the even larger DAPA), is very much in this vein. But the Left's contempt for both the actual Constitution and the very idea of constitutionalism has, in recent decades, been matched by a vigorous defense of it on the Right. Sometimes this has bled into fetishization of the document, but more important has been the Right's defense of a political culture of constitutionalism, as Yuval Levin and Adam White noted over the weekend.

So the real question is whether the Right has given up on constitutionalism. Unlike with Obama, Trump's Caesarist impulses have mostly been talk. But these recent orders, however modest their scope, have been rationalized as necessary responses to congressional inaction — thus presenting an Obama-style usurpation of the legislative power.

But, Levin and White note, "so far, most Republicans in Congress seem reticent to say so."

This wavering commitment to constitutionalism on the Right isn't just a matter of rooting for your own team; it's clearly a response to the Supreme Court's DACA ruling in June. The president campaigned on repealing Obama's illegal DACA decree "on Day One," though it took sustained pressure from conservatives to get the administration to finally do it on Day 228.

Three years of fierce lawfare followed, as the Left turned to the courts to defend its policy gains, however illegitimately acquired. But conservatives were confident that, eventually, they would succeed in the rescission of a policy memo that was unmoored in law.

So when the Supreme Court proclaimed that this illegal program had to continue because the administration hadn't jumped through the right hoops — hoops the prior administration ignored entirely in concocting it in the first place — something broke on the Right. Many in the administration, in Congress, and among the citizenry simply concluded that this is now the only way it's possible to govern, and that fastidious avoidance of pen-and-phone governance by Republicans would represent unilateral disarmament. Even if the administration makes another go at rescission of DACA (assuming there's a second term) and this time leaves no pretext for our weather-vane chief justice to latch onto, the damage may be irreversible. If these are the new rules, we play by them or surrender.

I wish this weren't so. And maybe it's not permanent; maybe we can wade back across the Rubicon. But I fear that those of us insisting on adherence to constitutional governance are like the aging Roman Emperor Claudius, as channeled by Robert Graves, who hatches a plan for his son Britannicus to restore the Republic. The young man is appalled, and answers his father: "I don't believe in the Republic. No one believes in the Republic anymore. No one does except you. You're old, Father, and out of touch."

Are we constitutionalists equally out of touch?