Why didn't the Trump Administration rescind DACA in a proper fashion?

Making the correct legal argument would have cast doubt on other elements of immigration law, and the acting DHS Secretary refused to say that DACA was a bad policy

|The Volokh Conspiracy |

Why did the Trump administration lose the DACA case? I think the crass answer is that Chief Justice Roberts would have found something, anything, to nitpick. With so-called "hard look" review, the Chief could have Monday-morning-quarterbacked the most airtight rescission of such a massive policy. But let's approach this question with the veil of ignorance. Why did the Trump administration fail to take the appropriate steps in 2017 and 2018 to properly rescind DACA. Jed Stiglitz offers some speculation. Here is mine.

First, Attorney General sessions wrote the initial letter concluding that DACA was unlawful. He chose to rely entirely on the Fifth Circuit's DAPA decision. Sessions did not offer any additional legal analysis why DACA was illegal or unconstitutional. Why? To do so, he would have had to cast doubt on other areas of immigration law. Consider what would happen if Justice Thomas's DACA dissent was a majority opinion. His analysis would have rendered huge swaths of the INA unconstitutional. Sessions, as a private citizen, no doubt agrees with Thomas. But the AG could only go so far. As a result, he took the unusual step of limiting executive power, but did so in such a precise fashion to avoid upsetting other areas of law.

However, throughout the litigation, DOJ refused to explain precisely why DACA was unlawful. They would only cite on the Fifth Circuit analysis. Indeed, Judge Bates cited my work to demonstrate that DOJ refused to argue this point.

At least one commentator has identified a second possible constitutional argument in the Sessions Letter: "The Obama administration's open-ended reading of certain definitional provisions of the Immigration and Nationality Act (INA) would run afoul of the nondelegation doctrine." See Josh Blackman, Understanding Sessions's Justification to Rescind DACA, Lawfare (Jan. 16, 2018, 8:00 AM) https://www.lawfareblog.com/understanding-sessionss-justification-rescind-daca; see also Texas, 809 F.3d at 150 (noting that the plaintiffs there had asserted "constitutional claims under the Take Care Clause" and the "separation of powers doctrine"). The government does not raise these arguments, however, so the Court will not consider them.

Second, Acting Secretary Dukes, according to the Times, "did not want her name on what she saw as anti-immigrant policy rationales put forth by Mr. Sessions." As a result, she did not offer any additional policy rationales to wind down DACA. Once again, President Trump was burned because he was unable to keep critical positions staffed. Some people argue that the President was unwilling to accept the policy implications of saying that DACA is a bad policy. I don't find this argument persuasive. Trump routinely blames his subordinates for things he ordered, and absolve any responsibility. (Recall how he blamed Barr for firing Berman). I don't think the average American knows, or cares, about the difference between saying (1) DACA is illegal, and (2) DACA is bad policy. Most people conflate the two elements. The problem here was Dukes, not Trump's cowardice.

Third, Judge Bates gave DHS a chance for a do-over. At the time, Secretary Nielsen wrote a new memo. DOJ argued that it merely reaffirmed by Dukes said. I thought it added new rationales. Ultimately, the Chief discarded it. (But Justice Kavanaugh found it dispositive). Why didn't the administration issue an unambiguous and robust defense of the rescission? I think the answer is timing. To issue a new policy would have brought the litigation back to square one. In hindsight, we now know that the rescission took up the entirety of Trump's term in office. But at the time, DOJ may have thought that SCOTUS would granted their petition for certiorari before judgment, and resolve this issue in 2018 or even 2019. Recall that DOJ had some success with emergency stays in the travel ban litigation. But the Supreme Court would not bail out the government. This issue stretched all the way to June 2020, without any clear resolution.

These three factors, I think, contribute to the government's defeat. There is nothing insidious. There was no bureaucratic "resistance." Rather, a combination of incompetence and institutional constraints yielded an inadequate agency action. In normal times, I think any other administration would have squared enough corners. But not with this administration during Blue June.

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  1. ” Why did the Trump administration lose the DACA case? I think the crass answer is that Chief Justice Roberts would have found something, anything, to nitpick. ”

    The lamentations of their women . . .

  2. I get the legal argument. I really do. However, I think that there are times when public policy has to reflect our sense of national decency. Perhaps that served as some motivation for the Court.

    1. Maybe you “get” the legal argument, and maybe you don’t. You sure as heck don’t understand “rule of law” if you want to substitute “rule of men” when it suits the outcome you want.

  3. It was an illegal policy, illegally adopted. Why the heck would they assume they needed to check more boxes ending it than were checked in starting it?

    1. I’ve wondered that for a long time, but Trump and his minions aren’t any more incompetent than Obama or any other administration, and just as even the most obvious criminals have to be convicted fairly, so too must illegal activity by a previous President be undone in a legal fashion.

      1. The problem with that approach is that you’re not talking about an illegal action that’s just sitting there, already done, and a bit of delay in reversing it is no big deal.

        You’re talking about ongoing illegality. Every day they continue it is a fresh crime! So, presuming the policy is illegal, the Court actually IS mandating that they continue violating the law, in direct violation of the President’s own oath of office.

        1. Did you support the executive order for “wet feet dry feet” that applied to illegals that just happened to vote Republican??

          1. I don’t recall being consulted, but if a court had declared it illegal, I wouldn’t have demanded that it continue anyway.

            1. No one has declared it illegal. If it was the Supreme Court would have declared it illegal.

        2. Saying something is illegal is not the same thing as saying it is criminal.

        3. Then ongoing illegality still has to be proved by legal means.

          If you don’t do things legally, even curbing illegality; if you do them outside the rule of law, then your actions are also illegal. Where does it end?

          1. Look, if it’s illegal for you to do it yesterday, and illegal for you to do it today, then barring some change to the law, it’s illegal for you to do it tomorrow. Why, having been told by a court that what they were doing was illegal, did they have to jump through hoops to stop doing it, when no hoops had been jumped through to start doing it?

            You’re making it harder to stop breaking the law than to start!

            1. Just yesterday, the Court limited the disgorgment powers of the SEC, in Liu v. SEC to only the amount of the wrongdoer’s profits.

              That means if any excessive disgorgement orders are out there, they are now illegal.

              Now, let’s say you are the recipient of one of those awards, and the SEC simply garnishes the money out of your bank account tomorrow. And when you sue them for not following proper procedure, the SEC says “but, but, it was illegal for you to have that money, the Supreme Court said so”.

              You still have a right to fair procedure, even if you are the recipient of a benefit later declared illegal. The government still has to follow the APA in taking it away from you.

              This isn’t hard. Honestly, you would never think this way if this were some white conservative small businessperson who was the recipient of something later declared illegal by the courts. You’d say of course the government still has to follow the APA.

              But because the recipients are Hispanic immigrants, you don’t think they are entitled to basic fairness.

  4. Obamacare: bend over backwards to give the Dems the maximum latitude
    DACA: bend over backwards to give the GOP the minimum latitude.

  5. I think the crass answer is that Chief Justice Roberts would have found something, anything, to nitpick.

    This self-pitying tone is unbecoming.

    1. I learned it from you mom.

  6. I get Mr. Blackman’s point that Roberts would have found a way no matter what the facts.

    But would the government’s case been stronger if they articulated no reason at all?

    Does the APA require a rationale for every DOJ legal position, and every Presidential Executive Order?

    1. If I remember correctly, the 2020 census question was ruled under APA, too. Not on the reasons the administration provided to the court, but by an interpretation of motives from internal emails.

      So I don’t think it matters. If you have a reason or don’t, the court will make them up for you or not, depending on their mood that day.

  7. Roberts basic argument must be that had the Trump administration carefully and properly considered the ramifications they would’ve come to the conclusion not rescind DACA.

    Therefore since they still wanted to rescind DACA they could not have carefully and properly considered the the decision.

    QED

  8. “I think the crass answer is that Chief Justice Roberts would have found something, anything, to nitpick.”

    Yes, he is the master of judicial Calvinball. The Obamacare case proved that,

  9. Don’t know what this is, but legal analysis it is not.

  10. “But not with this administration during Blue June.”

    Stop trying to make fetch happen.

    1. Lol it’s funny how much one tubby white guy makes you bitches act like well bitches.

      1. Lol it’s funny how easily you self-own.

        How do you get Sam Haysom to say something stupid?

        You don’t. He just does it all natural-like.

  11. The more basic question is, “Why did the Trump Administration want to rescind DACA?” The answer, of course, is racism and cruelty. But you don’t want to deal with that.

    1. Bullshite.

      It’s called “rule of law.”

      1. Double b.s. from you. DA stands for “deferred action”. It assumes a technical illegality

        1. oh come on. Screw the rule of law. Thats not what this is. This is rascism. Trump breaks the rule of law left and right.

    2. You ain’t seen nothing yet sweetie. You trying to run the South Africa play book in a country with way different demographics.

      1. the South Africa play book

        This…is saying quite a bit about Sam’s worldview.

        1. I don’t know, he was presenting as a pretty measured and sophisticated operator before that.

          1. Didja notice Aktenberg went silent about when he showed up?

  12. Essentially one guy had too much humanity to do his job correctly. The other one didnt give a shit, but was afraid of the collateral consequences of Thomas decision becomming law.

  13. Previous administration screwed up the ACA defense but Roberts went out of his way to fix their argument. (It’s a tax). Yet in this case they say “ The government does not raise these arguments, however, so the Court will not consider them.”

  14. I suspect Chief Justice Roberts basic problem was that President Trump used the DACA recipients as political merchandise, first expressing sympathy and proposing relief, perhaps in order to pump the goods and raise demand and hence pricing, then demanding a high price as part of a relief package, perhaps hoping the deal couldn’t be refused, and then cracking down when the merchandise wasn’t taken, perhaps to provide more incentive to deal.

    I think Chief Justice Roberts’ basic problem is an administration isn’t supposed to do that. An administration is suppose to make policy based on the text of the statute and rational policy considerations, not start with purely political hardball considerations and then retrofit policy labels to suit conclusions driven by the hardball politics.

    My difficulty is that if so, Roberts is doing exactly what he doesn’t like, twisting legal reasoning to suit conclusions driven by extralegal considerations. Perhaps his salve is that he thinks he, unlike President Trump, has the country’s long-term interests rather than his personal advantage in mind when doing so.

    But if this theory is accurate, then Roberts’ stated reasons were no more his real reasons than Trumps’ were, so close analysis of them is not likely to be helpful.

    My personal view is courts can’t play politics – they have to accept the stated reasons and work with them. Moreover, because following the law as congress passed it is always a rational basis for policy, and because I think President Trump has the same discretion to rescind DACA as President Trump had to enact it, I don’t think the Supreme Court’s legal decision was correct.

    1. As President Obama had to enact it.

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