The Volokh Conspiracy

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"Vox" symposium on lawsuits challenging Trump's termination of DACA


The Vox website has published a short symposium on legal challenges to President Donald Trump's recent decision to end the DACA program, which protected some 800,000 undocumented immigrants who were brought to the United States as minors, against deportation. It includes analyses by nine legal scholars and commentators, including myself. Here is an excerpt from my contribution:

I wish the situation were otherwise. But I fear it will be very difficult to save DACA through legal action. The argument for the constitutionality of DACA is that this is an issue within the enforcement discretion of the executive. That means President Obama did not act illegally when he adopted DACA without specific congressional authorization.

But it also means that his successor has the power to rescind it whenever he wants to, even if his action is cruel and unjust. Barring an unlikely change of heart by Donald Trump, the most likely way to reinstate DACA is by legislative action….

The recent lawsuit against DACA repeal filed by 16 blue states makes several creative arguments, but all seem like long shots, at least so far. One is that DACA repeal requires the use of complicated "notice and comment" rule-making procedures under the Administrative Procedure Act. The most obvious difficulty with this theory is that DACA was initially adopted without using the notice and comment process….

More promising is the theory that DACA repeal is unconstitutional because it is motivated by discriminatory ethnic animus against Mexicans, an argument similar to the one embraced by some lower court decisions that have invalidated Trump's "travel ban" executive order on the grounds that it was motivated by discrimination against Muslims. But the travel ban order was a direct outgrowth of Trump's campaign promise to adopt a "Muslim ban," thus making the discriminatory motive especially clear and strong. The link between DACA repeal and Trump's many anti-Mexican statements is more equivocal and harder to prove….

The contributors to the symposium include Eric Posner (University of Chicago), Asha Rangappa (Yale), Judith Resnik (Yale), Peter Margulies (Roger Williams), and others.

I outlined the case for the constitutionality of President Obama's initial DACA policy here and here.