The Trump Administration Begins DACA Rescission 3.0, And Moots All Pending Challenges to the 2017 Dukes Memorandum and the 2018 Nielsen Memorandum

DHS Secretary Wolf Withdrew the 2017 Dukes Memorandum and the 2018 Nielsen Memorandum. Attorney General Barr withdrew the 2014 OLC Opinion on DAPA and Sessions 2017 Letter to Dukes.

|The Volokh Conspiracy |

Yesterday, the Trump Administration commenced its third effort to wind down DACA. DACA Rescission 1.0 began in 2017. Attorney General Sessions wrote a letter to Acting DHS Secretary Duke. Sessions concluded that DACA was unlawful. And Duke, bound by that determination, issued a memorandum to rescind DACA on the sole ground that it was unlawful. She did not rely on any policy rationales. The district courts quickly enjoined the 2017 Duke Memorandum. Judge Bates (DDC) gave the administration another shot to rescind DACA. In 2018, DHS Secretary Nielsen issued a new memorandum. Call this document DACA Rescission 2.0. On appeal, the Supreme Court found that the 2017 Duke Memorandum was arbitrary and capricious. The majority declined to consider the 2018 Nielsen memorandum. (Justice Kavanaugh would have considered it). The Supreme Court's decision affirmed the lower-court rulings, thus lifting the stays. As a result, the 2017 Duke Memorandum was now fully enjoined by several courts. The original 2012 DHS Secretary Napolitano Memorandum remained in full force.

On July 28, 2020, Acting DHS Secretary Wolf official withdrew the 2017 Duke Memorandum and the 2018 Nielsen Memorandum. By doing so, he has now mooted all the challenges to the 2017 Duke Memorandum and the 2018 Nielsen Memorandum. The district courts that entered the injunctions against those two documents no longer have a live case or controversy. Instead, we are left with the original 2012 Napolitano Memorandum. That document created DACA. And there are no court orders requiring DHS to implement the 2012 Memorandum in any fashion. Recall, all the challenges concerned the 2017 Duke Memorandum and the 2018 Nielsen Memorandum. Therefore, there is no injunction requiring DHS to grant new DACA authorizations.

For the foreseeable future (probably till November), Secretary Wolf has announced that DHS will "reject all pending and initial requests for DACA." Doing so does not violate any court order. Again, there is no court order requiring DHS to grant DACA requests pursuant to the 2012 Napolitano Memorandum. The court orders only enjoined the 2017 Duke and 2018 Nielsen Memorandum. Here, the scope of the judgment becomes very important. A future court could order DHS to follow the terms of the 2012 Napolitano Memorandum. But that order has not yet been issued. As of today, DHS is in full compliance with all relevant court orders. (Press reports that the Trump administration has ignored the courts are simply wrong.)

But wait, there's more. Attorney General Barr sent Secretary Wolf a letter on June 30–twelve days after Regents was decided. Barr withdrew the 2017 Sessions letter. He also withdrew the 2014 Obama Administration's opinion that expressly authorized DAPA, and in a footnote, suggested DACA was lawful. (As of this evening, the opinion is still listed on OLC's site.) This withdrawal is huge. OLC does not often yank opinions. I'm glad Barr finally took this step. DOJ was arguing out of both sides of its mouth in court about DACA's legality, and was constrained by this opinion. Barr took these actions "to wipe the slate clean to make clear beyond doubt that you [Wolf] are free to exercise your own independent judgment in considering the full range of legal and policy issues implicated by a potential rescission or modification of DACA, as contemplated by the Supreme Court."

In short, the Trump Administration has completely mooted the pending challenges to the DACA rescission. This challenge will need to start on a blank slate. For sure, the plaintiffs will argue that this new front is merely pretextual. But we will need new amended complaints, and a fresh round of litigation.

Now, what happens in November? If President Trump wins re-election, then Secretary Wolf will likely make his interim policy permanent. People who have DACA can continue to renew it, but new applications will not be granted. And that policy will be litigated up to the Supreme Court. I think Trump wins for reasons I'll discuss below.

But what if Biden wins. Then his DHS Secretary will try to rescind the permanent Wolf memorandum that will be issued after the election. But to do so, the Secretary would have to consider an infinitely-wide range of options under the Chief's opinion. The failure to dot every "i" and cross every "t" could result in an arbitrary and capricious finding several years down the road. Who knows?

I think this policy is a manifestation of the John Yoo strategy. I was skeptical of this general strategy in Politifact. But I didn't realize how it would be implemented. I simply assumed that a district court would enjoin whatever Trump does. I don't think a district court can order the Trump Administration to exercise its prosecutorial discretion with respect to granting new DACA authorizations. The Supreme Court explained this was a substantive policy, subject to prosecutorial discretion. And there is no legal entitlement to DACA.

You see, rather than rescinding DACA, this new approach merely leaves the current memorandum in place, but declines to exercise discretion for the time being. For sure, a lower court somewhere will find this decision arbitrary and capricious. But I think the Chief Justice votes to stay those rulings. Why? Jon Adler explained well, Roberts likes to maintain the status quo.

Now what is the status quo? You may think the status quo is granting DACA applications. After all, DACA applications have been granted for nearly eight years. Well, not exactly. The status quo is that those grants were issued pursuant to discretion; not based on a court order. And now DHS is declining to exercise that discretion. The status quo, from the perspective of the 2012 memorandum, is maintained. The Wolf memorandum states this point expressly:

Consistent with the Court's express remand for the agency's reconsideration and the Napolitano Memorandum's clear statement that it conferred no substantive rights, DHS did not expand beyond the status quo of the past several years for a few weeks while it was determining next steps. I now conclude that all pending and future requests should be treated in the same manner, rather than be subject to differential treatment depending on the fortuity of when DHS received the request within a short period of uncertainty. Nothing in the Napolitano Memo purports to preclude me from exercising my enforcement discretion to make these changes on an interim basis while I consider whether to make more substantial changes on a permanent basis. Even under the Napolitano Memo, no aliens had a legal entitlement to receive DACA—much less a legal entitlement to a particular renewal period. Nor can aliens with pending requests assert any meaningfully greater reliance interests in their initial or continued enjoyment of the policy and the attendant benefits than aliens who submit such requests after the issuance of this memorandum.

This paragraph can be copy-and-pasted in a stay application addressed to John G. Roberts. And I suspect it will be granted. The Trump Administration accurately understood, and desribed the status quo.

And once the Supreme Court stays the lower-court rulings, allowing this memorandum to remain in place, a Biden Administration would have to litigate for nearly two years to get out from under it. And if the Biden administration tries to grant new DACA authorizations, it will be acting in an arbitrary and capricious fashion, for failing to properly rescind the Wolf Memo. Cue an injunction from the Fifth Circuit. For years, Trump was stuck with Obama's policies. Now, Biden would be stuck with Trump's policies. What's sauce for the goose is sauce for the gander.

DACA Rescission 1.0 and 2.0 were bungled, badly. Version 3.0 may actually stick for a few years until the Supreme Court decides the case. And even then, the Chief may send Biden back to square one. I have to admit, this approach is very clever, and takes the Chief on his own terms.

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  1. The question is, is it clever to take the Chief Justice on his own terms?

    Perhaps he’s a principled jurist operating on principles that just infuriate conservatives a lot of the time, and a tactic like this will work. (Assuming Democrats didn’t just respond by packing the Court.)

    But maybe he’s just a results oriented hack, and will privately laugh, and then find some rationale for infuriating conservatives again.

    1. “But maybe he’s just a results oriented hack, and will privately laugh, and then find some rationale for infuriating conservatives again.”

      The real funny part of imagining that is recalling how happy the conservatives were at how young he was when he was confirmed to the Supreme Court. You guys were just absolutely certain that he was your partisan stooge, and would be on the Court for decades.

      1. That hindsight of yours is a bit faulty. There were just as many who sounded a warning alarm, such as Ann Coulter, who pointed out that his lack of a voting record was setting the GOP up for another Brennan. She wasn’t wrong.

        1. You’re absolutely correct that I don’t pay any attention to what Ann Coulter says or does. It’s an approach I highly recommend.

          1. Well, if you had, you’d have known Trump would win the both the primary and general election. No one can predict the future, but she’s correct often enough. That said, she was one of the more prominent voices on the right warning of Roberts, which is why I remember it years later. But she wasn’t the only one.

            Anyway, it might do you some good to read or listen to the other side of the aisle once and awhile, even if at the very minimum by learning their arguments you learn how to better debate against them. Coulter is on Maher often enough, so you’d only be having to take her in small doses, and then you can go “yea, take that” when he comes back with some quip and the audience applauds like trained seals.

            1. Coulter hurt her credibility (as she often does) by being too extreme. Brennan was a Democrat and nobody really had any illusions that he would be some sort of conservative on the Court. (The Democrats controlled Congress and Eisenhower tried to be evenhanded with appointments.)

              Roberts isn’t even a Souter, who was the closest we have seen to a stealth nominee. Roberts is just a squish- which I realize conservatives don’t like, but it isn’t the same thing as a liberal- he still votes with you guys a lot.

              1. Roberts was a stealth nominee due to a distinct lack of a voting record. He is also a squish. You see, that lack of voting record meant that we couldn’t tell when he was nominated if he’d be a squish or a Scalia. Coulter was correct.

                As for Ike’s “two biggest mistakes” of Warren and Brennan, it was politicking, in that Warren was a quid pro quo, more than a desire to be evenhanded. Brennan as a sop to evenhandedness? Maybe. Truman did the same. I don’t know enough of the history behind Brennan, but Warren, though, was famously just some political backscratching.

                1. Counterpoint: Roberts was not a stealth nominee, did not have a lack of voting record, and is not a squish.

            2. “it might do you some good to read or listen to the other side of the aisle once and awhile”

              Meanwhile, your position that everyone has an “other side of the aisle” could stand some scrutiny. Just because I don’t approve of your preferred brand of politician doesn’t imply that I approve of any other brand.

              1. JP, don’t make me laugh. We were talking about politics, which traditionally has a left/right continuum, and as shorthand ones says “aisle” as the opinion divide because since the French revolution and “left” and “right” were where the divide was in their assembly.

                Yes, yes, that 4 way axis is more accurate in terms of belief, but not politics, due to Duverger’s Law. Thus, when someone says “the other side of the aisle” it means people you don’t agree with.

                1. “when someone says “the other side of the aisle” it means people you don’t agree with.”

                  You’re stuck in your assumption that there’s a party I agree with. It just doesn’t fit in your mind that there are people who don’t have a brand loyalty in their politics.

                  1. PS
                    I’m not anti-conservative. I’m anti-stupid.

        2. I was only 25, but I opposed Roberts at the time. I didn’t think his record was long enough, and he had spent too much time in the Northeast swamp.

          1. I can only assume the Senate was unaware of your opposition.

      2. I mean, idk. I would probably take a Justice Posner or maybe even Justice Sunstein over Robert’s, both of which would be probably significantly more liberal than Robert’s.

        But they are very principled. Roberts isn’t. Posner would infuriate conservatives but he would do so on solid grounds vis his sort of objective pragmatism philosophy (law and economics) he has developed and has influence everywhere except the supreme court currently. Suinstein would definitely infuriate conservatives but he would infuriate liberals just as often (minimalism, so no gay marriage, miranda, etc … which he has outright said) on principles.

        It’s not just party politics or ideology, it’s the notion that many actions aren’t really coherent.

        1. “It’s not just party politics or ideology”

          Of course not, now that it turns out the judge isn’t the partisan ideologue he was expected to be.

          1. Did you even read my comment or are you just in the business of making snarky remarks? I just said that I, a conservative, would prefer a more liberal justice who would be more principled. Even Alito, who I’m sure you would cast as a partisan ideologue, has a rather coherent legal ideology which comes out when he breaks from the conservative wing, it just isn’t originalism.

            And from my reading of the history, Robert’s was chosen because he was seen as a somewhat more conservative Rehnquist, not a “partisan ideologue.” Alito was the primary choice to satisfy the conservative base, with Harriet Myers having been torpedoed Bush basically said, ok fine I’ll find a super conservative if you will play that game. But Roberts was absolutely not seen as that, Bush expressly didnt want to confirm two uber conservatives at the same time. He wanted to find someone who thinks and will act like Rehnquist.

            Robert’s ideology up until his nomination was not expressly originalist or even conservative, it was proceduralist. As it is now. Which is annoying to everyone, because regardless of who’s side you are on everyone hates arbitrary procedural roadblocks, which Robert’s specializes in.

            1. Choice B. Choice B.

              1. How is this at all responsive to AC’s analysis?

                1. I was just responding to the first question he asked.

            2. “Did you even read my comment or are you just in the business of making snarky remarks?”

              Reading your comment doesn’t rule out snarky remarks. The difference is, I don’t inhabit your partisan bubble where Rehnquist is your example of a non-partisan, non-idealogue.

              1. ” I don’t inhabit your partisan bubble where Rehnquist is your example of a non-partisan, non-idealogue.”

                I guess you overplayed your hand there. If Rehnquist is an example of a partisan ideologue, than all justices are. Which is an acceptable argument, to an extent correct, but hardly allows you to target conservatives for their judicial preferences but not liberals for theirs.

                Conservative justices break away from the 5 far more than the liberals break away from the 4. Ginsburg and Sotamayor are way more partisan than almost any other justice save Thomas, are they exempted? And I’m the one in the partisan bubble.

                1. “And I’m the one in the partisan bubble.”

                  You’re starting to see. Focusing your analysis on the 5 of the one and the 4 of the other is part of your problem.

            3. ” I just said that I, a conservative, would prefer a more liberal justice who would be more principled.”

              Now that your first choice, a conservative justice who would rule conservatively by reflex, is off the table, your second choice is the liberal justice who rules predictably.

              1. Look, if legalism and legal arguments in general mean nothing to you, and everything is a game of politics, fine. I for one believe in the legal system as a system of laws not politics. I prefer a candidate who would restore the court as an instrument of legality and remove its partisan nature. Hence Posner or Suinstein.

                You seem to not want to do that. Which is fine, but then you going after conservatives for being partisan when you are every bit as partisan, just on the other side, is kind of hilarious.

                1. ” I for one believe in the legal system as a system of laws not politics.”

                  Sure you do. Since a legal system that operates solely on politics the way you want them is off the table. You’ll settle for your second choice.

                  ” I prefer a candidate who would restore the court as an instrument of legality and remove its partisan nature.”

                  Sure, because you didn’t get the partisan you wanted.

                  “You seem to not want to do that. Which is fine, but then you going after conservatives for being partisan when you are every bit as partisan, just on the other side, is kind of hilarious.”

                  “The other side”, in MYcase, is not being a member of ANY political party. Hilarious.

                  1. To spell out the irony, I’m accused of being “every bit as partisan” despite not having a party. Thinking YOUR guy is a twit doesn’t imply support for THEIR guy.

        2. Are you, to use a technical term, nuts? Posner is (was) exactly the opposite of very principled. Roberts, on the other hand, is.

    2. Nah, ’cause he might pick one of his other traits to enforce that day.

      “IT’S A TAX!”

      1. “IT’S A TAX!”

        It WAS a tax. Here’s a hint: who was in charge of enforcing it?

        1. That’s more disputative than you think. If you honestly think that if the Internal Revenue Service collects, you know, revenue, that it makes it a tax by default of the Internal Revenue Service collecting it? Then if TCBY sells ice cream instead of yogurt, does it automatically become yogurt because it’s sold by TCBY?

          It was a mandate penalty, even when Heritage had it as their counter to Hillarycare, and was written into the law as such. Robert’s saving construction made it into a tax, everyone acknowledges this, why can’t you?

          1. It was a tax before Roberts noticed it was a tax, and it’s still a tax.
            calling a tax something else doesn’t make it not a tax. In case you haven’t noticed, politicians like to avoid voting for “taxes” or “tax increases”, but they’re happy to talk about “revenue enhancements”. It might be rude to burst their careful avoidance by pointing out that “revenue enhancements” are taxes but truth is truth.

            1. You’ve built this whole logical superstructure on the idea that words have the meanings you want them to have, rather than what the dictionary says. “Penalty” is not “tax”. If it was always a tax, not a penalty, how come it was necessary for Roberts to rewrite it as a tax, and the drafters of the law called it a penalty from the start? Note, they didn’t call it a “tax penalty”. They could have put in the extra 3 letters.

              Your whole position is predicated on the belief that it was all a political obfuscation, and thus a lie, and thus an acceptable lie because Congress has that taxing power but not that power under the Commerce Clause.

              1. “You’ve built this whole logical superstructure on the idea that words have the meanings you want them to have, rather than what the dictionary says. ”

                No, not at all.

                Things are what they are, and pretending they’re something different doesn’t change what they actually are. You’re getting that exactly backwards.

          2. ” If you honestly think that if the Internal Revenue Service collects, you know, revenue, that it makes it a tax by default of the Internal Revenue Service collecting it?”

            Why are you imputing your theory to me?

  2. I assume the bolding in the quote of the Wolf memo was added by Josh, if so I think the “no” before “alien” should also be bold.

  3. Who do you think has standing to sue to get an injunction against a recision of the Wolf memo on day one of the Biden adminstration?

    1. I was just about to ask that lol. The main problem that conservatives will run into while trying to strike down Bidens immigrations would be standing. The government ordinarily has standing here against immigrants, but Biden isn’t going to sue himself.

    2. State attorneys general sued (succesfully) to enjoin DAPA. I presume they can figure out an argument good enough for a sympathetic judge to find that they have standing.

  4. Everyone’s acting like Robert’s has some masters plan here. Either anti conservative or whatever.

    I have a different theory. Robert’s entire job, before coming to the supreme court, was to find procedural snags in otherwise winning cases to torpedo the opposing side. This is what he did in corporate law firms. This is what he did throughout his career. It is what he is doing now. Relying in procedure to, as much as possible, maintain the status quo.

    The DACA case was a perfect example of this, the case was waved away with a wand of procedural nonsense.

    When much of the conservative movement tried to tighten standards of standing and tried to enjoin cases and statutes with the APA, Robert’s was with them. When the left tries it, Roberts is also with them. That is what is does.

    1. I think Roberts is being a Chief Justice, and that a lot of the criticism comes from not understanding or not accepting that a Supreme Court full of Clarence Thomases would just see its jurisdiction stripped or its decisions ignored.

      1. I think this is a good point. The Chief Justice is not only the head administrator of the court, he is the one tasked with making sure the Court maintains it’s super-legislative authority both legally and in the minds of the public.

        The left has thrown off any vestige of the rules of polite society. Maintaining civilization in the face of fascist insurrection is a difficult balance.

  5. Actually, it should be pretty easy to rescind the Wolf Memorandum, seeing as Wolf has overstayed his FVRA appointment.

    1. Or, rather, get it struck down in court.

  6. Ideally, Congress would settle this whole kerfuffle by passing legislation that either put DACA into statute or firmly placed limits on the discretion available to the Executive.

    What are the odds that a bill that took either path would get through Mitch?

    1. Starting January, there’s a good chance it won’t have to.

      1. I don’t think the D’s will get 60 seats.
        If they do, it’ll be karma for circling the wagons for Trump, but karma isn’t reliable in the short term.

        1. 60 seats don’t matter, the moment Republicans try a filibuster it will be abolished. All 60 gets you is more ability to win party line votes despite defections.

          1. “60 seats don’t matter”

            Except in the Senate.

        2. A whole bunch of Republican senators have voted for the DREAM Act before, when they knew the House would shoot it down. McConnell has been preventing the current version from coming to the floor. Schumer will force a vote on it. Having the majority does make a difference.

        3. James Pollock : I don’t think the D’s will get 60 seats.

          I don’t think they need to for DACA. Remember : About three-quarters of U.S. adults favor granting permanent legal status to immigrants who came illegally to the United States when they were children, according to mid-June poll by the Pew Research Center. If the Dems get fifty seats and Vice President Harris to cast the deciding vote, I think you’ll see enough Republicans join to resolve this issue once and for all.

          DACA won’t be the hill they want to die on.

          1. That support drops like a rock when you tell people the truth about the achievement levels of these people.

            1. You mean the truth that they outperform you

        4. I think perhaps Thrax meant that McConnell himself may not be in the Senate any more after January.

          1. The good people of Kentucky might come to their senses. But there’ll be a new Mitch as soon as the old one starts to inquire about unemployment benefits.

      2. Agreed. Once the adults take leadership in the House we can settle this issue properly.

        1. We stopped putting adults in charge of things in this country around January of 2017.

    2. It wasn’t McConnell that put the halt on immigration reform. It was, number one, Trump, who wanted a merit based system in exchange for DACA being permanent, and secondly, the Dems for being willing to take that exchange.

      Besides, it’s the Senate’s job to say no. Teacup and saucer and all that.

      1. Oh bullshit.

        Trump keeps talking about how wonderful the Dreamers are, but plays to the xenophobes when it’s time to act.

        1. Oh bullshit.

          Nancy Pelosi keeps talking about how wonderful the Dreamers are, but plays to the open border advocates and refuses to compromise when it comes time to make a deal, hoping to wait Trump out.

          (I hate to tell you this, but the “dreamers” are nothing but a poker chip. Nobody really cares about them, except what they can get out of their Obama created plight)

          1. “(I hate to tell you this, but the “dreamers” are nothing but a poker chip. Nobody really cares about them, except what they can get out of their Obama created plight)”

            You’d have a point (blaming Obama) if Obama had personally left the country, and grabbed up children and smuggled them in. The plight of the dreamers was created by the parents who brought them here.

            1. I’m just referencing this most recent legal plight from the OP as created by Obama, because Obama is the one that put them in this zombie-ish legal state with his illegal executive action. But yes, you are correct, their parents put them in the mess in the first place by coming to this country illegally.

              1. ” Obama is the one that put them in this zombie-ish legal state with his illegal executive action.”

                You’re still skipping a step. Congress created the zombie-ish legal state by writing the law so that all the illegal entrants are supposed to be removed, but there’s a cap on how many people can hear removal petitions. This creates a mandatory exercise of prosecutorial discretion. Every President since Reagan resolved this by having categories of people that got them moved to the front of the line. Obama added a category that gets moved to the back of the line, but again this is because of the catch-22 Congress created.

                1. There are often irreducible legal tensions. For example, right now in IL, a face mask is mandated, but legal concealed carry prohibits a mask.

                  It’s amusing as you’re shifting back and forth in time, ignoring proximate causality until, like Goldilocks, you get JUST the right one to make Obama’s illegal executive order acceptable and to blame everyone else, like the parents and Congress, for the legal state of the “Dreamers”.

                  1. “It’s amusing as you’re shifting back and forth in time, ignoring proximate causality until, like Goldilocks, you get JUST the right one to make Obama’s illegal executive order acceptable and to blame everyone else, like the parents and Congress, for the legal state of the ‘Dreamers’.”

                    You’re babbling.
                    there’s plenty of blame to go around for the legal state of the “Dreamers”.

      2. “it’s the Senate’s job to say no.”

        That’s a very distorted view. It’s the Senate’s job to ensure that federal legislation is agreeable to the states.

        1. And if the legislation isn’t agreeable, what should should they say?

            1. No answer is a way of saying “no”.

              1. True enough. Except for when it’s a way of saying “yes”

      3. “It wasn’t McConnell that put the halt on immigration reform.”

        It will be. Whichever way the bill that crosses his desk leans.

    3. I’m sure DACA could pass through Mitch, so long as other pieces were put in in order to secure the borders.

      Democrats don’t want to pay that political price though. And they figure they don’t have to.

      1. “I’m sure DACA could pass through Mitch, so long as other pieces were put in in order to secure the borders.”

        This magical bill that makes people not want to come here illegally. How does that work? Does it require much pixie dust?

        1. Less pixie dust, more armed people on the border.

          “You wanna illegally immigrate to the US?”
          “Yeah!”
          “Uh, there’s a guy with an M-16 looking at us shaking his head”
          “Maybe we better turn back…”

          1. I’d rather just line the border with anti-personnel mines. When the amigos back in Central America get word that their cucaracha cousins got their legs blown off, they’ll reconsider their plans.

            1. “they’ll reconsider their plans.”

              And plan on entering somewhere else. Meanwhile, the land next to the border belongs to Americans. After a few them watch their kids trigger mines on their own property, support for your plan will fade. You thought the blowback from putting kids in cages was fierce? Try blowing up a couple of OUR kids…

          2. So you agree with the psycho below, AL? If not, why not?

          3. “Less pixie dust, more armed people on the border.”

            East Germany tried this approach, and it doesn’t work. (and they had the advantage that the people approaching the border were on their territory.

            the Koreas have a border like the one you want. I don’t think they like it.

  7. Cases do not become moot just because one side says they are. The Feds would have to make a motion in court, which the other side can object to, and the case only becomes moot once the judge agrees. Until then the latest judicial orders are valid and enforceable.

    1. Sure they do. If the orders have nothing to do with a set of actions (or inaction) they’re moot.

      1. If the injunction is prohibiting removal proceedings against DACA members, that order would be in effect until the Judge rescinds it. That being said, it does seem to be moot, so I would expect that to happen with all deliberate speed.

        1. Nah. “Your Honor, we seek leave to amend our complaint to challenge the new memorandum, which does not even try to cure the defects in the earlier ones.” Mootness on the grounds of voluntary cessation is heavily disfavored at any rate, and this wouldn’t be cessation at all, it’d just be moving some papers around.

  8. I think this misses a key understanding of the world: Democrats make rules for others to follow. They don’t follow rules themselves.

    They’ll do whatever dishonest thing they want and find a way to claim the rules don’t apply. Just like they did with DACA. Their dishonest judges aid their lawless actions and Roberts makes up whatever bullshit is required to let them.

    1. “Democrats make rules for others to follow.”

      A quality they share with Republicans.

      “They’ll do whatever dishonest thing they want and find a way to claim the rules don’t apply”

      And another.

      ” Their dishonest judges aid their lawless actions and Roberts makes up whatever bullshit is required to let them.”

      Trifecta

      1. And you just admitted it.

        The main difference is Republicans make a lot fewer rules. And when they do, it’s an uphill battle against all the regular government check and balances and the news media and the dishonest judges and protestors and more. So it’s a minor problem at most.

        Democrats make many rules. The checks and balances are few. The news media cheers the suffering of Democrats’ victims. The protestors act as a violent street enforcement army. They coerce the banks. They use their Silicon Valley friends to censor. They conspire with foreign governments. They send the IRS after people who disagree. They use the government education system to oppress, indoctrinate, and systematically deprive whole classes of Americans of opportunities. They close the University doors. They import foreigners to fill jobs so they don’t have to associate with the wrong kind of Americans.

        It’s normal civil lawmakers contrasted with hostile totalitarians. Yeah, you are correct, the normal civil lawmakers should be better sometimes.

        1. “And you just admitted it.”

          I just admitted what?

          “The main difference is Republicans make a lot fewer rules.”

          No, the main difference is that when they’re out of office, Republicans talk a LOT about making fewer rules. Then when they’re in control of the government, they suddenly remember how much fun it is to make rules for other people.

          ” They conspire with foreign governments.”

          That was Trump, and he claims he’s one of your guys. And Mitch’s Mob didn’t see anything wrong with it.

          ” They send the IRS after people who disagree. ”

          that was Nixon. Noted Democrat.

          “It’s normal civil lawmakers contrasted with hostile totalitarians.”

          If that’s what you want to imagine, that’s what you can make yourself see, I guess.

          1. You are being very dishonest, as expected.

            1. I’m totally sorry that you find having your preconceived notions shown wrong is dishonest. Doesn’t make it true, however; like your other notions, it’s just not.

              Take, for example, your theory that ONLY the D’s make rules (laws) for other people. The R’s have spent nearly 50 years trying to make abortion illegal. Guess all those pro-lifers were Democrats the whole time.

              Simple Fact: Partisans seek political power so that they can control the government, including the ability to make law.

              Simple Fact 2: “Partisans” means YOUR party, too.

  9. Prof. Blackman, is there a difference in the reliance interest of those already granted DACA status, and those merely eligible? It seems to me there is a real difference there, which also argues for the ability to stop granting new applications, while maintaining status for those already in.

    Was that addressed? I may have missed it.

  10. I’m consistently reminded of the 2007 Immigration reform bill, and the work Obama did to help sabotage the bill.

    That, BTW, included the entire DREAM act.

  11. I’m not so sure that the rescissions of the 1.0 and 2.0 memorandums will necessarily moot the challenges to (or injunctions issued against) them. While circuit courts have split on their treatment of voluntary cessations when the defendant is a government actor, the SCOTUS has never indicated that government cessations get any special treatment/deference v. cessations by private defendant.

    An example of this is the Trinity Lutheran case. Trinity involved a First Amendment challenge to a Missouri grant policy that treated religious and secular organizations differently. While the case was pending, “the Governor of Missouri announced that he had directed the Department to begin allowing religious organizations to compete for and receive Department grants on the same terms as secular organizations.” The Court held that this policy change didn’t moot the case, because “[t]he Department has not carried the “heavy burden” of making “absolutely clear” that it could not revert to its policy of excluding religious organizations. ”

    The same thing is true here. If the injunctions are vacated as moot, nothing stops the DHS (or AG’s office or OLC or whatever relevant body) from reverting to DACA rescission 1.0 or 2.0 in the future. Assuming that the office/agency that made the policy change was named as a defendant in these cases, they would need to meet the same “heavy burden” of showing that it is “absolutely clear that the allegedly wrongful conduct could not reasonably be expected to recur” that everyone else who claims that their voluntary cessation has mooted a case does.

    It’s true that outside of the SCOTUS, the situation might be different. Circuits have split on how they treat government cessations, with some giving much more deference to government actors than others. But even in more deferential circuits, the fact that the administration has repeatedly tried to rescind DACA in similar ways and has openly announced their intent to try again would make hard for the government to assert that its rescission has rendered these challenges/injunctions moot.

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