When Rebecca Trimble was a little girl, she wore red, white and blue to Independence Day parades. In middle school, she was a flag-bearer for the Girl Scouts. During her teenage years, the Backstreet Boys blared from a boom box in her bedroom. It was on the eve of getting married in 2012 that she,
When Rebecca Trimble was a little girl, she wore red, white and blue to Independence Day parades. In middle school, she was a flag-bearer for the Girl Scouts. During her teenage years, the Backstreet Boys blared from a boom box in her bedroom.
It was on the eve of getting married in 2012 that she realized there was something amiss in her all-American upbringing. Adopted as an infant from Mexico, she discovered that what she thought was a minor mix-up in her paperwork was something else entirely. Eventually, she realized that not only was she not American, she did not, in the government’s view, belong in the United States at all.
This year, a letter from U.S. Citizenship and Immigration Services arrived in the remote corner of western Alaska where Trimble cooks for homeless people and where her husband, John, is the only dentist in town.
“You are not authorized to remain in the United States,” it said, ordering her to depart the country within 33 days or face deportation.
“I feel incredibly vulnerable,” Trimble, 30, said as her two boys, Elliot, 5, and Jay, 4, played in their Bethel apartment. “I am putting my faith in a miracle.”
Lax oversight of international adoptions for years fueled a booming trade in babies. In the 1980s and ’90s, Americans seeking children were tricked into paying organized rings for babies smuggled across the border. In the early 2000s, children wrongly taken from their parents by brokers in Vietnam, Guatemala and other countries were presented as orphans to American adoption agencies. In other cases, parents did not understand, or did not follow, the rules for making foreign adoptions fully legal.
“There are too many people in limbo through no fault of their own,” said Susan Jacobs, a retired ambassador who was the special adviser on adoptions at the State Department between 2010 and 2017. “They find out in their 20s, and are held accountable for what their parents did or didn’t do when they were babies.”
The Adoptee Rights Campaign, a group that promotes citizenship for adoptees, estimates that at least 35,000 people in the United States lack U.S. citizenship because their adoptive parents failed to secure it for them.
They have started families of their own, only to learn the truth when they went to vote, tried to obtain a passport or got into trouble with the law. More recently, their precarious status has been laid bare when they applied for a Real ID, a license with stricter standards that will be required for domestic air travel in 2021.
“Adopted adults are discovering they are not citizens after thinking they were Americans all their lives,” said Gregory Luce, an immigration and adoptee rights lawyer in Minneapolis.
Adopted adults are discovering they are not citizens after thinking they were Americans all their lives.” – Gregory Luce, Minneapolis lawyer
In 2001, Congress provided relief for adoptees below the age of 18 who lacked citizenship, and the federal government has been willing to help others adjust their status on a case-by-case basis. But that flexibility appears to have diminished under the Trump administration’s restrictive immigration agenda.
Trimble’s story began when her adoptive father, George Wilson, a recreational vehicle mechanic in Salem, Oregon, and his wife, Pamela Edmonds, gave up on conceiving a child after eight years of trying. One day in 1989, they got word from friends in Mexico that a baby about to be born there would need a home. They agreed to pay the medical bills and headed for Mexico.
Three days later, they were homebound with their daughter. At the border, a U.S. agent peered into their vehicle, where Rebecca was bundled up in her new mother’s arms; he waved them through. The next month, a birth certificate arrived from Mexico that listed them as Rebecca Lynn Wilson’s parents, which they thought — incorrectly — was all they needed to render the adoption legal.
Becky, as they called her, “was such a joy, so smart and so loving,” Edmonds, now 62, recalled.
Eventually, Becky learned that she was adopted. “I didn’t think I was any less American.”
After her parents separated, Trimble and her mother moved to Vancouver, Washington. At Hudson’s Bay High School, Becky excelled in her classes, took up bowling and managed the track team.
One of her teachers encouraged the class to register to vote ahead of the 2008 presidential election, and that November, Trimble voted for the only time in her life.
She fell in love with a fellow student, John Trimble, a distance runner who took her to the prom. After high school, the couple decided to get married and thought about a road trip to Canada for their honeymoon.
In the spring of 2012, Rebecca Trimble applied for an enhanced ID, an alternative to a passport that Americans can use to enter the United States from Canada or Mexico.
A clerk studied her Mexican birth certificate, handed it back to her and said that Trimble had to show further proof of U.S. citizenship, such as a naturalization certificate. She was stumped.
“I go to my mom and ask her questions, and she doesn’t know. John and I started researching,” she recalled.
Only much later did the extent of the problems with how her parents handled her adoption become apparent. Before leaving Mexico, Rebecca Trimble’s parents should have obtained official custody of their new baby from a Mexican judge and then secured an immigrant visa for her at a U.S. consulate.
In February, Rebecca Trimble received a two-page decision denying her a green card.
The denial stated that on Jan. 17, 2008, she had illegally registered to vote and that she had then voted in a general election that November. “Therefore, your application must be and hereby is denied,” it said.
Trimble had 33 days to depart the country, or face deportation.
“I felt I had no identity at that moment. I meant nothing,” she said, her voice breaking.
In March, the Trimbles’ lawyer, Margaret Stock, filed a motion to reopen Trimble’s case, and the Bethel City Council passed a resolution urging federal representatives and agencies to recognize “the uniqueness of Rebecca Trimble’s situation.”
Last month, Immigration Services declined the request. Stock’s next move is to sue the agency in federal court to secure a green card or citizenship for her client.
Both Alaska senators have introduced a private bill “for the relief of Becky Trimble” that would be required to pass the House and the Senate, a process that could take years.
Rebecca Trimble, whose legal bills have mounted, has not been informed that a deportation case has commenced against her, perhaps because the coronavirus pandemic has slowed immigration enforcement.
For now, she is trying to resume what she called “a quiet, normal life.” On Jay’s birthday, she baked lemon cake with tundra-blueberry frosting, and the family celebrated on Zoom with friends and relatives. She tried to suppress fears of immigration agents showing up to take her away.This story was originally published at nytimes.com.
The Future Looks Very Different on Opposite Sides of Los Angeles
SHOW THEM YOU’RE GOOD A Portrait of Boys in the City of Angels the Year Before College By Jeff Hobbs Immigration narratives are often only about the journey, but what happens when a migrant arrives at his or her destination? And what happens to his or her children after they’ve been there a while and,
SHOW THEM YOU’RE GOOD
A Portrait of Boys in the City of Angels the Year Before College
By Jeff Hobbs
Immigration narratives are often only about the journey, but what happens when a migrant arrives at his or her destination? And what happens to his or her children after they’ve been there a while and grown-up? That’s the story Jeff Hobbs tells in “Show Them You’re Good,” a portrait of four exceedingly bright and ambitious Central American and Mexican-American high school seniors in California who find themselves after years of straight A’s and stellar extracurriculars hoping to gain admission to Princeton, Harvard, Dartmouth, and other top-tier colleges.
It’s senior year, 2016. For Carlos, the most promising of the group, Trump’s presidential victory two months into the school year is particularly worrisome; unlike his friends, he’s undocumented, an applicant for DACA, and the possibility of deportation threatens to destroy his shot at the American dream.
The boys attend Ánimo Pat Brown Charter High School in Los Angeles, the country’s second-largest school district, in a city that ranks fifth from last in spending per pupil.
They live in Compton, surrounded by neighborhood gangbangers and I.C.E. agents, of whom they live in fear; their parent’s clean houses or drink too much or struggle to support their families on meager wages. But the boys are harder to pin down, fresher as types, and their stories, Hobbs writes, “represented exactly the immigrant narrative that had been celebrated through generations as central to American ideals — except that this narrative was neither celebrated nor idealized when the flesh of its central characters was not white.”
Carlos, whose older brother (likewise undocumented) received a full scholarship to Yale, studies all night after school in his family’s cluttered illegal shack in another family’s backyard. Tio is a skateboarder and prom king with a 4.0 G.P.A. Luis and Byron take A.P. courses, play pranks, and aspire to be engineers.
Immigrant youth, especially undocumented students and so-called Dreamers, have been shoved around as political pawns, alternately lionized and vilified, but we don’t have much in-depth, nuanced reporting about who these youth really are, how they think and live, how they navigate and interact with American institutions beyond border walls and detention camps.
This has started to change in recent years, most notably with Eileen Truax’s “Dreamers” (2015), an oral history of DACA youth, and with memoirs by undocumented writers like Jose Antonio Vargas’s “Dear America” and Marcello Castillo’s “Children of the Land.”
Hobbs’s carefully observed journalistic account, written with the detached intimacy of ethnography and reported over a year and hundreds of hours spent watching and interviewing his subjects in class, at dances, sporting events, assemblies, homecomings, proms, graduations and in the students’ homes, helps flesh out this larger body of work with an empathetic but objective eye, and in so doing widens our view of the modern “immigrant experience” to include that classic crucible: high school and college admissions, specifically, the experience of first-generation overachievers and the unique challenges they face in this regard.
As Tio explains, when he and other students across Los Angeles organize a walkout in protest of Trump’s presidential victory, kids like him must “stay together and say what we know to be true about us.”
Curiously, the book also follows five students at Beverly Hills High School, 22 miles across the city from Compton and one of the wealthiest districts in the country. The Beverly Hills students mostly don’t have to worry about money, or the law, and suffer a more tedious form of ennui and anxiety, like that experienced by Owen, son of a very wealthy Hollywood writer and former actress, who “felt spoiled, a little undeserving, as if he’d been born to parents so intelligent and caring that they’d deprived him of the rite of stumbling clumsily through youth’s travails, as most kids did, knocking into chairs and corners, gaining wisdom from poor choices.”
Hobbs contrasts the experiences of the two groups of boys and is interested in how both groups struggle to carve out lives from the expectations prompted by their origins — the Latinos slandered by Trump as “bad hombres” and “rapists,” the Beverly Hills kids resented by Middle America as spoiled brats. But his attempt to link their senior-year struggles through the supposed “stigma” that results from their origins feels facile and ignores meatier discussions of race or class that would better illuminate the boys’ two worlds — and the gulfs between them. The inclusion of the Beverly Hills students makes the narrative feel unbalanced, especially given the wildly lower stakes of their challenges compared with those of their peers in Compton, and by the end of the book, one doesn’t have a much greater understanding of the factors that structure the lives of both groups of boys, nor, really, why some have succeeded while others failed.
Upon graduation, the Beverly Hills students go off to top tier colleges where the most privileged among them “didn’t have to factor money into [their] decisions at all.”
In Compton, Byron doesn’t get into any four-year school and must choose between work and the military; Luis goes to the University of California at Santa Barbara; Tio is heartbroken that, despite his 4.0 G.P.A. and extracurriculars, he’s denied acceptance to every school except the less prestigious U.C. Riverside, where he’ll study agricultural science.
Carlos, meanwhile, achieves the near-impossible, gaining the right to a two-year legal stay in the United States as a DACA recipient and earning a full ride to Yale even while his family is evicted from their illegal home.
Hobbs celebrates Carlos’s victory as “the completion of some fantastical cycle by which his parents had come here together, alone and moneyless and without the faintest inkling of prospects, and now, almost 20 years later … the sons they’d brought with them might both attend Yale University — together.”
Readers of Hobbs’s last book, “The Short and Tragic Life of Robert Peace” — about his former roommate at Yale, a Black student who can’t disentangle himself from his roots in Newark and is ultimately killed in a drug deal — will know that the value of getting into an Ivy League school, absent relief from broader systemic racism and economic disadvantage, is often dubious.
Oddly, Hobbs’s subjects seem to understand this better than Hobbs himself. We learn in the epilogue of “Show Them You’re Good” that at Yale, Carlos becomes an outspoken critic of what he sees as the unfair treatment of undocumented and poor students on campus, and he’s criticized in turn for being “ungrateful.”
Tio, meanwhile, feels betrayed by his ambitions, by the “encouragement” that “had brought him to override his own cynicism, layered over 18 years of life, about the idea that a system that had rarely worked in favor of people who looked like him might have begun to change. That it had in fact changed for Carlos, Luis, his girlfriend, and others in the hallways at school, but it hadn’t for him, further concentrated his melancholy.”
As deportations of undocumented young people increase, as thousands of migrant children end up in cages and as President Trump disparages Latinos whenever it’s politically useful, readers aren’t likely to be convinced by Hobbs’s broader suggestion that the American dream, that “fantastical cycle,” has simply been picked up and revived by the newest generation of ambitious immigrant youth like Carlos, Tio, Luis, and Byron.
But despite the book’s perhaps unfounded optimism and the baffling juxtaposition between Compton and Beverly Hills, “Show Them You’re Good” is an admirable addition to the growing body of literature that humanizes the struggles and expands the scope of our understanding of the lives of immigrant youth at a time when they’re under near-constant threat of dehumanization.
By Wes Enzinna
“A LIGHT IN THE FOREST” — Michelle Mendez at the “CLINIC” Shows How Good Pro Bono Lawyering Saves Lives Even When The System Is Rigged Against Justice For Immigrants!
Subject: CLINIC BIA Pro Bono Project Recent Victories Friends, BIA and federal circuit court appeals often feel like an uphill battle, a true David and Goliath fight. It can be particularly discouraging right now, during an isolating pandemic, when DHS and DOJ issue new regulations and the BIA and AG publish opinions almost weekly,
Subject: CLINIC BIA Pro Bono Project Recent Victories Friends,
BIA and federal circuit court appeals often feel like an uphill battle, a true David and Goliath fight. It can be particularly discouraging right now, during an isolating pandemic, when DHS and DOJ issue new regulations and the BIA and AG publish opinions almost weekly with the purpose of making it more difficult for noncitizens to win their cases.
However, CLINIC’s BIA Pro Bono Project continues to fight back and perform miracles—defeating Goliath—thanks to BIA Pro Bono Project Manager Rachel Naggar, BIA Pro Bono Project Legal Specialist Brenda Hernandez, and our many dedicated attorney volunteers.
Rachel and Brenda shared with me the project’s awe-inspiring stories of success from this summer and the volunteers who made these victories possible. In turn, I share these success stories with you to offer inspiration to keep fighting for your clients while the Trump administration escalates its attacks on immigrant communities.
- The BIA remanded the case of a Haitian asylum seeker on numerous grounds, including that the IJ did not apply the proper framework for assessing firm resettlement, the IJ mixed up the respondent’s political party when assessing his claim for withholding of removal, and the IJ did not meaningfully consider the respondent’s risk of future persecution. Thank you to Michael Ward of Alston&Bird!
- The BIA overturned the IJ’s adverse credibility finding against an asylum seeker from Burkina Faso. The BIA also found that the IJ erred in concluding there was no nexus between the harm the respondent suffered and his political opinion, including that the prosecution he endured was actually pretext for persecution. Thank you to Gregory Proctor, Marjorie Sheldon, and Christian Roccotagliata of Kramer, Levin, Naftalis & Frankel!
- The BIA granted asylum to a Cuban refugee. Contrary to the IJ, the BIA found that the harm suffered by the respondent did cumulatively rise to the level of past persecution and he did have a well-founded fear of persecution. Thank you to Austin Manes and Aaron Frankel of Kramer, Levin, Naftalis & Frankel!
- The BIA remanded the case of a Cuban asylum seeker because the IJ failed to consider the evidence of past economic persecution along with the physical harm suffered. The BIA also reminded the IJ that where the persecution is committed by the government, it is presumed that internal relocation is not reasonable, and the burden shifts to DHS to demonstrate that it would be reasonable in this case. Thank you to Dean Galaro of Perkins Coie!
- The BIA reopened the case of a Cuban asylum seeker because he had new evidence of harm and threats against his family that occurred after his final hearing with the immigration judge. Thank you to Astrid Ackerman and Aaron Webman of Kramer, Levin, Naftalis & Frankel!
- The Ninth Circuit granted the petition for review of a Ghanaian asylum seeker, overturning the IJ’s negative credibility finding and concluding that the Board had failed to adequately consider the country conditions evidence when it denied CAT relief. You can read the full decision here. Thank you to Kari Hong of Boston College Law School!
- The Third Circuit, in a published decision, granted a Honduran asylum seeker’s petition for review, finding that the IJ and BIA erred in analyzing whether the respondent had suffered past persecution. The Court also found that the IJ failed to conduct the proper analysis regarding the need for evidence in an application for CAT protection. You can read the full decision here. Thank you to Aaron Rabinowitz and Gary Levin of Baker & Hostetler!
- The Sixth Circuit, in a published decision, granted a Russian asylum seeker’s petition for review, finding that the IJ and BIA erred in concluding that the respondent was not persecuted on account of his political opinions and that his indictment for peacefully protesting under Russian law was a pretext for persecution. You can read the full decision here. Thank you to Brenna Duncan and Andrew Caridas of Perkins Coie!
- DHS withdrew its appeal of a grant of asylum from Mexico to a Cuban national. DHS conceded to the IJ that the respondent was eligible for asylum from Mexico, but not Cuba because of the Third Country Transit Bar. DHS changed its mind and filed an appeal, which was withdrawn after pro bono counsel filed his brief. Thank you to James Montana of The Law Office of James Montana!
- The BIA dismissed an appeal by the Department of Homeland Security and upheld a Cuban woman’s grant of asylum. The Board found that the IJ was correct in deeming the respondent eligible for asylum and not subject to the Third Country Transit Bar. Thank you to Aaron Rabinowitz and Jeffrey Lyons of Baker & Hostetler!
- ICE released a Venezuelan asylum seeker from detention to reunite with her spouse, after tremendous advocacy efforts by her pro bono attorney. Thank you to David Gottlieb!
- The Ninth Circuit remanded the case of a Honduran victim of domestic violence, at the request of the Department of Justice. The Court ordered the BIA to reconsider whether the respondent had demonstrated that the Honduran government acquiesced in her persecution, whether the respondent is part of a viable particular social group, whether it would have been futile for her to report the harm to local authorities, and whether internal relocation would be reasonable. Thank you to Alicia Chen!
- A victim of human rights violations by the notorious Eritrean military was granted withholding of removal, after the BIA overturned the IJ’s adverse credibility finding and found that the IJ failed to consider that the country conditions evidence corroborated the respondent’s claim. Thank you to Jonaki Singh and Susan Jacquemot of Kramer, Levin, Naftalis & Frankel!
- The Ninth Circuit remanded the case of an asylum seeker from Mexico, at the request of the Department of Justice. The Court ordered the BIA to reconsider whether the respondent had been persecuted and sexually assaulted on account of her sexual orientation, and whether the government of Mexico could adequately protect her from future harm. Thank you to Tim Patton of the Appellate Immigration Project!
- The Fourth Circuit granted the petition for review holding that a conviction under VA 18.2-280(A) is not a removable firearms offense, a result that would not have been possible had Mr. Gordon not continued to fight his case for so many years even despite being deported. You can read the decision here. Thank you to the CAIR Coalition and Ted Howard at Wiley Rein! Thank you also to the National Immigration Project of the National Lawyers Guild for the amicus support!
Jose came to the United States in 1985 to live with his father as a permanent resident. He built a life in the United States, becoming a father himself. After a run in with the law, he was placed in removal proceedings and was detained for 19 months.In a 2-1 decision, the Third Circuit found that under the unique circumstances of this case, Jose’s father was deprived of the equal protection of the laws. Jose is a United States citizen, the court declared, and has been since 1985.In the wake of the Supreme Court’s 2016 decision in Sessions v. Morales-Santana, Jose’s case was the first to benefit from this Supreme Court decision. You can read the full decision here. The government petitioned for rehearing, but the full Third Circuit declined to intervene.
Ultimately, the government declined to ask the Supreme Court to review the case. For the better part of the last decade, Jose’s life has been filled with uncertainty and stress, but not anymore, which is very important as Jose is expecting his first grandchild. A huge thank you to Nick Curcio who has represented Jose for 7 years!
In its 19+ years of operation, the Project has reviewed more than 7,200 cases, pairing attorneys and law school clinics with vulnerable asylum seekers and long-time lawful permanent residents. If you are interested in representing a case through CLINIC’s BIA Pro Bono Project, please complete our volunteer form. If you prefer to show your support for the BIA Pro Bono Project via a monetary donation, please designate “BIA Pro Bono Project” in the “In honor of” field of our donations page.
Gratefully and in solidarity,
Michelle N. Mendez (she/her/ella/elle)
Director, Defending Vulnerable Populations Program
Catholic Legal Immigration Network, Inc. (CLINIC)
Thanks Michelle, my friend, colleague, and courageous leader of the NDPA. What a timely, wonderful, practical, “real life” illustration of Jason “The Asylumist” Dzubow’s “praise and call to action for pro bono” that I republished earlier this week! https://immigrationcourtside.com/2020/08/11/lifesaving-101-for-the-ndpa-begins-with-pro-bono-never-has-the-need-been-greater-pro-bonos-finest-hour-in-americas-time-of-darkness-cruelty-inhumanity/
Here’s what our colleague Judge Jeffrey Chase has to say about Michelle and CLINIC:
No surprise, Michelle. CLINIC is responsible for so much good case law. And the non-CLINIC successful attorneys probably used CLINIC training or practice advisories. Congrats to you and all of your outstanding attorneys and support staff, and thanks for all you do!
Even in times of our greatest national darkness and misery, there are plenty of lives that can be saved! Contrary to the “Dred Scottification” — dehumanization of persons in our country — unconscionably pushed by the regime and enabled by many public officials and courts that “should know better,” every person’s life is important!
And, despite the conscious misinterpretation and misapplication of the Fifth Amendment by far too many of those charged with upholding it, every person in the U.S., regardless of race or status, is entitled to due process, fundamental fairness, and to be treated with human dignity.
Think of how much progress we could make if we didn’t have to keep re-litigating all the same issues over and over again, often with differing results!
What if the “precedents” concentrated on those cases that could be granted, rather than almost exclusively focusing on “roadmaps to denial?”
What if we promoted and supported great pro bono representation, rather than inhibiting and discouraging it?
What if meritorious cases were moved to the “head of the line” instead of continuously being “shuffled off to Buffalo” by “Aimless Docket Reshuffling” (“ADR”) thereby languishing in the mindlessly expanding backlog?
What if Federal Judges at all levels were the “best and the brightest” — selected from among those with demonstrated expertise in immigration, asylum and human rights and impeccable reputations for due process, fundamental fairness, and humanity, rather than being selected for “go along to get along” reputations or allegiance to perverse political ideologies that undermine equal justice for all?
What if our Immigration Court system were administered independently and professionally, rather than as a biased and weaponized tool of DHS enforcement and White Nationalist politicos?
What if our Justice System worked cooperatively with folks like Michelle, Jason, Judge Ashley Tabaddor, and many others with good, creative, practical ideas for institutionalizing “best practices” leading to to “due process with efficiency?”
What if we fairly implemented our refugee, asylum, and protection legal framework to “protect rather than reject?”
What if we consistently treated our fellow beings as humans, rather than as “less than human?”
What if we viewed immigration for what it really is: the foundation of our nation and a continuing source of great strength, pride, and optimism for our country of immigrants, rather than pretending that we live on an island and must “wall off” the rest of the world?
This November, vote like your life and the future of our nation depend on it! Because they do!
Defending Vulnerable Populations Director
Catholic Legal Immigration Network, Inc.
Legal scholars dispute Trump’s claim to power ‘nobody thought the president had’
President Trump has routinely asserted his outsize view of presidential power, but his claim to unprecedented clout in recent weeks springs from an unlikely source: one of his defeats at the Supreme Court. Support our journalism. Subscribe today.arrow-right Trump has asserted that with the stroke of a pen he can break through gridlock on immigration,,
Trump has asserted that with the stroke of a pen he can break through gridlock on immigration, health care, the stalemate on relief for those hurt economically by the coronavirus pandemic, even mail-in balloting.
“The Supreme Court gave the president of the United States powers that nobody thought the president had,” Trump told Fox News interviewer Chris Wallace on July 19.
On Wednesday, he said he might employ them on the payroll tax. “I have the right to suspend it, and I may do it myself. I have the absolute right,” the president said on “Fox & Friends,” reviving an idea he floated months ago but which has faced opposition from Republicans and Democrats alike.
Trump had promised Wallace an “exciting two weeks,” but so far it’s been all executive talk and no executive action.
The source of Trump’s recent bravado appears to be provocative articles by a law professor at the University of California at Berkeley whose expansive views of presidential power match Trump’s.
John Yoo, the professor, has proclaimed Chief Justice John G. Roberts Jr.’s opinion stopping the Trump administration from dismantling the Obama-era program protecting young undocumented immigrants a blessing in disguise. He contends that it allows presidents to take even unlawful actions that can require years of legal battles to undo.
To say that Yoo’s view of the court’s 5-to-4 decision on the Deferred Action for Childhood Arrivals program is an outlier would be an understatement.
“I think he must be on some kind of drug,” said Laurence Tribe, a longtime constitutional scholar at Harvard. The court’s decision “did not even remotely provide a blueprint for the kind of lawlessness John Yoo seems to be trying to convince this president” to undertake, Tribe said.
The Supreme Court’s decision was seen by most analysts as a check on presidential power. It said that the administration must show it considered the consequences of undoing a program on which 700,000 “dreamers” had come to rely, and that the Department of Homeland Security’s decision to end it because of its purported unlawfulness was inadequate under the Administrative Procedure Act.
Leah Litman, a constitutional law professor at the University of Michigan, said the Trump administration’s tendency to cut corners on such legal requirements has had consequences.
“The administration has a horrendous track record in the Supreme Court and in the lower federal courts in cases involving the Administrative Procedure Act, which requires the administration to give reasonable arguments and legitimate explanations for its policy choices,” Litman said.
“Yoo’s argument is based on a misunderstanding of the DACA policy, and an even worse misunderstanding of the Supreme Court’s decision in the DACA case,” she said. “Neither would stand up in court under any kind of scrutiny.”
It is hard at times to separate the vehemence of opposition to Yoo’s views from personal objections to Yoo himself. He will always be known in Washington as author of the “torture memos,” which condoned tactics such as severe sleep deprivation and waterboarding for terrorism suspects taken into custody during the George W. Bush administration — measures later renounced.
“That the administration plans to use John Yoo’s tortured (yes that’s intentional) arguments is a pretty good indication of why this administration frequently loses in court on administrative law,” Litman wrote in an email.
Yoo met with the president last week in the Oval Office, to discuss the theory and a new book he has written. “Defender in Chief: Donald Trump’s Fight For Presidential Power” makes the case for an “energetic unitary executive” with constitutional authority to act decisively and resist overreach by Congress and the courts.
Yoo told The Washington Post that Trump asked about his articles. Because the Supreme Court majority said then-President Barack Obama’s decision to not enforce certain immigration laws could not be quickly undone without satisfying the APA, Yoo argues, presidents have sweeping authority to take all sorts of actions — even legally questionable ones — and keep them in place for years while legal battles slowly proceed.
“If you can choose not to enforce the immigration laws, here are the other things you could not enforce — such as not collecting taxes because we’re in the middle of this Great Depression,” Yoo said he told the president, summarizing his arguments in Newsweek and the National Review.
“We talked about the article and what it said, but I don’t want to say anything about what potentially they want to apply it to. They have the right to ask people for advice confidentially,” Yoo said.
One White House official, speaking on the condition of anonymity to detail internal discussions, cautioned against the implication that the administration would use Yoo’s theory in advancing the executive actions the president has said he is planning, and played down the significance of the professor’s Oval Office visit.
The president hardly needs encouragement to act unilaterally. One of his first directives in office was a ban on entry to the United States by citizens of several majority-Muslim countries, which went through three editions before being approved by the Supreme Court. His administration has moved aggressively on other issues, such as changing asylum rules and declaring a national emergency to shift money from the Pentagon to fund construction of a southern border wall.
Yoo’s articles said there was no reason to stop there. In the National Review article, Yoo theorized that Trump could create a national right to openly carry weapons.
“Even if Trump knew that his scheme lacked legal authority, he could get away with it for the length of his presidency,” Yoo wrote. “And, moreover, even if courts declared the permit illegal, his successor would have to keep enforcing the program for another year or two.”
That is “essentially” what happened in the Department of Homeland Security v. Regents of the University of California, Yoo wrote.
Michael W. McConnell, the director of the Constitutional Law Center at Stanford Law School, said he considered Yoo’s pieces more of a “tongue-in-cheek critique” of Roberts’s reasoning than a blueprint for presidential action.
Trump has done a 180-degree turn on the issue. He initially tweeted that it and other “horrible” decisions by the court were “shotgun blasts into the face of people that are proud to call themselves Republicans or Conservatives.”
But in the days afterward, the president said the decision required him only to fill out “paperwork” to get the plan to end DACA back on track. Since then, he has declared the ruling a boon.
Most, though, see the decision as of a piece with a previous ruling by Roberts, also joined by liberal Justices Ruth Bader Ginsburg, Stephen G. Breyer, Sonia Sotomayor and Elena Kagan, that the administration had not properly complied with law in trying to attach a citizenship question to the 2020 Census.
David Cole is legal director of the American Civil Liberties Union, which has clashed repeatedly with the president’s desire to expand executive discretion. He said it was clear the Regents decision limited executive action.
“The case did not question whether Trump had the authority to rescind DACA, it challenged only the way he did it,” Cole said. “And the court found he did it illegally.”
The court’s four most consistent conservatives dissented. But Justice Brett M. Kavanaugh, one of Trump’s two nominees to the bench, wrote that “all nine members of the court accept, as do the DACA plaintiffs themselves, that the executive branch possesses the legal authority to rescind DACA and to resume pre-DACA enforcement of the immigration laws enacted by Congress.”
Justice Clarence Thomas’s dissent, joined by Justices Samuel A. Alito Jr. and Trump appointee Neil M. Gorsuch, provides some support for Yoo’s theory. Under the majority’s rule, Thomas wrote, there could be “perverse incentives” for outgoing administrations to make questionable policy decisions it would be hard for the next administration to reverse.
“Even if the agency lacked authority to effectuate the changes, the changes cannot be undone by the same agency in a successor administration unless the successor provides sufficient policy justifications to the satisfaction of this court,” Thomas wrote. “In other words, the majority erroneously holds that the agency is not only permitted, but required, to continue administering unlawful programs that it inherited from a previous administration.”
Other legal scholars have made a similar point. Zachary Price, a professor at UC Hastings Law School in San Francisco, said the decision “may carry implications that progressives will regret.”
Writing in Scotusblog, Price said the Trump administration “might use its remaining time in office to adopt permissive enforcement policies across any number of areas, from gun control to labor regulation, the environment and public corruption.” A new administration would be foreclosed from changing them without meeting the court’s standards.
But Price doesn’t think that is likely. Roberts and the liberals, he said, seemed to have created a decision so narrow that it “seems deliberately designed for one day and case only.”
Cole said the real lesson of the decision is “what is done by unilateral executive order can be undone by unilateral executive order — so the real check on President Trump will be the November election.”
Carol D. Leonnig, Jeff Stein, John Wagner and Matt Zapotosky contributed to this report.
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