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Volokh Conspiracy

Instant reaction to DACA Case: At Least Five Votes that Rescission Not Reviewable

Given the six-month wind-down, the policy would remain intact until after the inauguration.


I attended oral arguments today in the DACA case. I will have much more to say about the proceedings, as well as the process to get there, in due time. For now, I will briefly offer my prediction: there are at least five votes to hold that the DACA rescission is not reviewable. I say at least five, because Justice Kagan did not seem averse to that analysis. Indeed, a decision that the rescission is not reviewable could lead to the conclusion that DACA itself is not reviewable. SG Francisco tried to thread the needle by saying DACA was reviewable, but the decision was not. Justice Kagan seemed skeptical of this argument. The specific contours of that ruling would become important if President Trump loses re-election.

This type of ruling would be the best-case loss for the Dreamers. Given the 30-day period following remand, followed by a six-month wind-down period, DACA would remain in effect until after the inauguration. In theory, at least, a Democratic president could simply reinstitute the policy on January 20, 2021. At that point, we would be back at square one, and Texas would sue to block DACA.

The Court already ducked the merits of deferred action once in 2016. It could do so again here. And it may take another two years before the case winds its way back to the Court. At which point, the reliance interests would become even greater than they are today.

Update (11/13/19): The New York Times quotes Mark Krikorian, a prominent critic of DACA. He suggests that the effective date of the rescission could be extended further in light of the election.

Mark Krikorian, an immigration restrictionist and the executive director for the Center for Immigration Studies, said that Mr. Trump could theoretically defer making a decision during the election year. With such a move, Mr. Trump's White House could say the administration will stop processing renewals of DACA status so that it does not kick in until after the election.

"In the middle of an election year, I think the White House can genuinely say that this is not a good time to broker an immigration deal, not for anyone," Mr. Krikorian said. "That's a plausible position for them that may limit the political challenge that they face" by ending the program immediately.

I strongly doubt any changes will be made prior to January 20, 2021.