Immigration

The First Amendment Protects the Dreamers, Too

Using data from the DACA program to deport people is morally wrong and probably unconstitutional.

Speak out.

Photographer: Andrew Harrer/Bloomberg

President Donald Trump’s Department of Justice claims it has the authority to use information submitted by Dreamers who applied for the Deferred Action for Childhood Arrivals program to deport them now. It’s obviously wrong for the government to lure people in by the promise of freedom, then use what they have said against them. It may also be unconstitutional, a violation of due process that shocks the conscience and a violation of the Dreamers’ free-speech rights when they registered for DACA in the first place.

To be clear, this issue only arises if the Trump revocation of President Barack Obama’s DACA policy is itself constitutional. A lawsuit before the courts has already been amended to claim that the reversal violates the equal protection of the laws by discriminating against Latinos.

But it will be very hard for that legal argument against the DACA revocation to prevail. The stated basis for Trump’s reversal of DACA is that the program exceeded the president’s constitutional authority. That view isn’t out of left field. The U.S. Court of Appeals for the 5th Circuit so held, and the U.S. Supreme Court split 4-4 on the issue before Trump was elected and Justice Neil Gorsuch joined the court.

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Even if DACA was itself constitutional, the same theory of executive discretion that permitted it would in principle permit Trump to rescind it, at least so long as he did not act on the basis of unconstitutional prejudice.

The fact that the president can very probably reverse DACA doesn’t automatically mean the government can take the documentation submitted by Dreamers and use it to deport them. There will soon be lawsuits arguing that doing so is unlawful. Although they may be long shots, they aren’t necessarily greater long shots than the suit brought against DACA in the first place.

One argument against using Dreamers’ submissions to deport them derives from the constitutional guarantee of due process in the Fifth Amendment. Zachary Price, a professor at the University of California’s Hastings College of the Law, argued last fall in the Washington Post that using the Dreamers’ own words against them would be a kind of entrapment. Price’s core idea is that because the government actually elicited the Dreamers’ statements, it cannot now rely on them in separate legal proceedings for deportation.

To deepen the due process argument, it could be added that, by long constitutional tradition, the government violates due process when it takes actions that “shock the conscience.” As Justice Felix Frankfurter explained in a 1952 decision, Rochin v. California, the decision that a government action shocks the conscience rests with the courts and depends on the specific circumstances.

Although case law applying this standard usually relates to physical invasion by police (in the Rochin case, the police forced a suspect to vomit up two morphine capsules), it is a plausible extension to say that it shocks the conscience to exploit Dreamers’ efforts to register for a government program intended to benefit them.

Interacting with the U.S. government can’t be treated as a game in which the participants must gamble on whether the approach will lead to sanctuary or deportation.

What’s more, using Dreamers’ information against them bears a more than passing resemblance to forcible self-incrimination in criminal law, which is also barred by the Fifth Amendment, albeit in the different circumstances of the courtroom.

Beyond due process, there is a viable free-speech argument against deporting the Dreamers on the basis of what they said in their applications. And given the conservative Supreme Court justices’ love of free speech and distrust of expanding due process, it may have a better chance of success.

When the Dreamers announced themselves to the government, they were actively participating in the political process, standing up and saying they exist. This was speech, both actual and symbolic -- the kind that lies at the very heart of the First Amendment.

Filling out the DACA application was very different from filling out any other government form. It was a publicly significant act.

If the government uses Dreamers’ statements as a basis for deportation, it burdens the speech rights that the Dreamers exercised. In effect, the government would be punishing Dreamers for standing up and saying they exist. People inside the U.S. have free-speech rights, even if they are not citizens.

It’s true that, if you admit publicly that you’re guilty of a crime, the government can later use that statement against you without a First Amendment violation. The crucial difference is that, when the Dreamers made their statements, they were simply making assertions of legal entitlements.

For the government subsequently to treat those statements as a basis for deportation is to retroactively punish the protected speech act. It turns any public statement into a potential basis for future government retaliation, which would have a chilling effect.

A further possible First Amendment concern is that the government may not condition receipt of a benefit on waiver of a constitutional right. To deport the Dreamers for statements they made in order to receive the benefit of the DACA program arguably creates an unconstitutional condition on their past speech.

The free-speech argument isn’t a home run. The Trump administration could say that it isn’t punishing the Dreamers for speaking but simply taking advantage of the information they freely provided. Yet a court troubled by the outrageousness of the government’s bait-and-switch might reject that purported distinction.

Congress could solve this problem by prohibiting government use of Dreamers’ statements against them, an idea that has been knocking around Congress for a while. But given how unlikely that is, it’s time to double down on the constitutional arguments -- to avoid a moral crime that truly shocks the conscience.

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

    To contact the author of this story:
    Noah Feldman at nfeldman7@bloomberg.net

    To contact the editor responsible for this story:
    Stacey Shick at sshick@bloomberg.net

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