The Trump Administration will keep DACA operational despite believing the program illegal. Acting Homeland Security Secretary Chad Wolf vowed on NBC’s Meet the Press and CBS’ Face the Nation he believed the U.S. Supreme Court never declared DACA legal but had issues with its implementation. From Face the Nation:
Well, what I would tell you is that we know that the DACA program is unlawful. The Supreme Court even this week did not say that the program was lawful. And in fact, they said that the department has the ability to rescind the program. What they didn’t like is the rationale in the way in which we propose to do that. And I- I find that a little concerning because what we know is the Obama administration created this program out of thin air, did not provide notice and comment before the American public to comment on such a- a monumental decision. Instead, the president and this administration has laid out a six month phase out program, been very upfront with the American people about how to do that.
Wolf noted the agency will follow the high court’s ruling, for now.
We’ll continue the program as we have over the past two years, continuing to renew those. But the president’s been very clear about wanting to find a lasting solution for these individuals. He’s also directed the department to take a look at the court opinion, take a look at our rationale, and we’re doing that as well so that we can, again, wind down this program. I think it’s important to- to remind your viewers this is an unlawful program.
Wolf’s and the Trump Administration’s justification fell under the guise of “it takes a wrong to right another wrong.” However, the Supreme Court believed otherwise in ruling the Administration violated the Administrative Procedures Act by not allowing public comment (hot takes from journalists and social media notwithstanding).
“The dispute before the Court is not whether DHS may rescind DACA,” Chief Justice John Roberts wrote in the majority opinion. “All parties agree that it may. The dispute is instead primarily about the procedure the agency followed in doing so.”
The Court agreed that some procedures were correctly followed by then-Attorney General Jeff Sessions until DHS got involved.
The dissent is correct that DACA was rescinded because of the Attorney General’s illegality determination. But nothing about that determination foreclosed or even addressed the options of retaining forbearance or accommodating particular reliance interests. Acting Secretary Duke should have considered those matters but did not. That failure was arbitrary and capricious in violation of the APA.
I’m partially sympathetic towards the Trump Administration’s argument. The Obama Administration’s decision to unilaterally enact DACA exceeded his scope of authority under the Constitution. The fact he violated the Administrative Procedures Act cinches my opinion despite a compelling argument to the contrary from Ilya Somin at Volokh Conspiracy in 2012. Somin saw DACA as legal under the guise of the federal government deciding what crimes are worth pursuing and what aren’t due to the leviathan of federal law. The Trump Administration sees the decision to revoke DACA as legal because it’s enforcing the leviathan of federal law.
Both arguments make sense; however, the federal government needs to play by the rules regardless of the circumstances. Not doing so only allows the executive to hoard more and more power for itself. We don’t live under an elected monarchy with elected “advisers” in Congress.
The solution to this is simple: Congress…do your job. Perhaps it’s also time to reconsider the plethora of laws on the books and start revoking them, as well, if they have nothing to do with life, liberty, or property.