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Volokh Conspiracy

President Trump and DHS Secretary Dukes Made it (Nearly) Impossible to Defend DACA Rescission

SCOTUS can still uphold the rescission if it agrees that Attorney General reasonably concluded that DACA was unlawful


In a 2017 letter, Attorney General Sessions concluded that the courts would likely find DACA illegal. Acting Homeland Security Duke relied on that legal determination (as she was bound to do by statute), and directed that that the program should be wound down. Neither the Attorney General's letter, nor the Secretary's letter, justified the rescission on any obvious policy grounds.

At the time, I struggled to understand this rationale: why would the administration handcuff DOJ's defense of the rescission? If the administration simply stated that the policy was no longer desirable, then most legal challenges would fail. (The administration still would have had to deal with 5th Amendment equal protection claims, but those counts were always a long shot.)

A new book sheds light on this quandary: "Border Wars: Inside Trump's Assault on Immigration," by Julie Hirschfeld Davis and Michael D. Shear. The authors, with Adam Liptak, published a new article in the Times that recounts the inner-workings of the DACA discussion.

Here is a brief summary. Immigration hardliners pushed President Trump to wind down DACA. But Trump was sympathetic to the Dreamers, and did not want to take responsibility for the decision. Instead, he pressured Attorney General Sessions to lead the charge. He concluded that the policy was unlawful, and the courts would likely enjoin it. Secretary Duke refused to argue that DACA was a bad policy. As a result, the entire case turned on Session's determination of DACA's legality–a question on which Duke was bound. And Sessions knew that this decision would make it very difficult to litigate the case.

Here are some of the excerpts from the article:

 When Attorney General Jeff Sessions appeared before news cameras at the Justice Department in early September 2017 to announce that President Trump was ending deportation protections for young undocumented immigrants, he knew the administration had left itself more legally vulnerable than it should have.

At a contentious meeting in the White House Roosevelt Room several days earlier, Elaine C. Duke, then the acting secretary of homeland security, had broken with the rest of Mr. Trump's team and balked at its demand that she issue a memo ending Deferred Action for Childhood Arrivals, the Obama-era program known as DACA that shields immigrants who were brought to the United States as children.

Ms. Duke was deeply bothered by the idea that she could be responsible for deporting hundreds of thousands of young people from the country they considered their own. And she did not want her name on the policy rationales put forth by Mr. Sessions; Stephen Miller, the president's powerful immigration adviser; and others who argued that the program encouraged new waves of illegal immigration and was an undeserved amnesty.

She eventually relented under merciless pressure. But her refusal to cite their policy objections to the program is now at the heart of what legal experts say is a major weakness in the government's case defending the termination of the program, which will be argued on Tuesday at the Supreme Court.

The President's unwillingness to take a difficult stance, and the fact that he did not have a confirmed DHS Secretary in place who would follow his directives, has handcuffed DOJ throughout this entire process. Now, Andy Pincus explains that counsel for respondents have used these internal processes to shape their arguments.

Last week I noted that DOJ finally articulated what the "constitutional defects" were in DACA. This argument, our brief maintains, supports the Attorney General's reasonable conclusion that DACA was unlawful.