On Thursday, the United States Supreme Court rendered one of its worst decisions of the year. The Court said that President Trump’s Department of Homeland Security (DHS) did not jump through enough bureaucratic hoops in rescinding the DACA (“Deferred Action for Childhood Arrivals”) amnesty that President Obama’s DHS created by decree. Chief Justice Roberts joined the four liberal justices in ruling against the Trump Administration.
DACA allows virtually any illegal alien up to the age of 31 (as of June 15, 2012, when it was announced) who claims that he entered the United States before the age of 16 to gain “deferred action” and remain in the country. The alien also becomes eligible for employment authorization. In practice, some 700,000 illegal aliens up the age of 39 have received the amnesty—it’s not limited to “children” as the Left pretends.
As I have written previously, the DACA amnesty was blatantly illegal from the beginning. I brought the first case against DACA in 2012 on behalf of 10 ICE agents who were being ordered to violate federal law. In 2013, the U.S. District Court for the Northern District of Texas issued a preliminary injunction agreeing that the DACA amnesty likely violated federal law. Unfortunately, a liberal panel of Fifth Circuit judges subsequently decided that the 10 ICE agents didn’t have standing to sue.
It would eventually take a new president to pull the plug on the illegal DACA amnesty. And that’s exactly what candidate Trump promised he would do. On August 31, 2016, in Phoenix he correctly described DACA as an “illegal executive amnesty.” And he promised that he would “[i]mmediately terminate President Obama’s two illegal executive amnesties in which he defied federal law and the Constitution.”
In September 2017 he made good on that promise. The Attorney General issued a statement declaring that DACA violated federal law. The following day, acting DHS Secretary Elaine Duke issued a memorandum rescinding DACA.
Liberal attorneys then pounced on the Administration, claiming that the Duke memorandum did not contain enough explanation to satisfy the Administrative Procedure Act (APA). In response to the U.S. District Court for the District of Columbia, DHS Secretary Kirstjen Nielsen issued yet another memorandum nine months later, explaining more fully why DACA was illegal.
But now five justices of the Supreme Court have come to the bizarre conclusion that the DACA amnesty, which was completely illegal and which itself violated the APA, cannot be rescinded as easily as it was created. Chief Justice Roberts wrote the opinion. All nine of the justices conceded that DHS has the power to rescind DACA, but the question is “the procedure the agency followed in doing so.”
The Roberts opinion is a twisted knot of legal argument that is not easy to follow. But it can be summarized as this: the Duke memorandum didn’t offer enough explanation for the decision to rescind DACA; and although the Nielsen memorandum did offer adequate explanation, it can’t be considered because it went beyond the reasons offered in the original memorandum without announcing that it was a “new” agency decision. As Justice Kavanaugh protested in dissent, this was an “idle and useless formality.” Nevertheless, that is what the five-justice majority relied upon.
In contrast to the contorted reasoning of the majority, Justice Thomas’s dissent was straight as an arrow. In his words, “DHS created DACA during the Obama administration without any statutory authorization and without going through the requisite rulemaking process. As a result, the program was unlawful from its inception. … So long as the agency’s determination of illegality is sound, our review should be at an end.”
So what is the path forward? The Supreme Court made clear that the Trump Administration can rescind DACA all over again, this time with a more comprehensive explanation. President Trump’s DHS needs to immediately draft a new memorandum rescinding DACA and addressing the additional issues that the Supreme Court identified. Specifically, do the DACA aliens have a “reliance” interest that entitles them to DACA relief? (No. The Obama Administration’s original DACA memorandum said it “confers no substantive right, immigration status or pathway to citizenship.”) And was the deferring-of-removal aspect of DACA a violation of federal law?
The latter issue can be addressed easily because the deferring of removal violated federal law in multiple ways. The most obvious violation of was described by the U.S. District Court for the Northern District of Texas, in the Crane v. Napolitano case that I argued. The court concluded that DACA likely violates 8 USC 1225(b)(2). That statute requires that any alien an ICE officer determines to be inadmissible “shall” be placed in removal proceedings. Congress passed this law in 1996 to stop the “catch and release” policies of the Clinton Administration. DACA orders ICE agents to break this law by releasing DACA aliens; it is therefore illegal.
The second illegal aspect of DACA is that it violates the APA. Enacting an amnesty as sweeping as DACA requires an act of Congress. But even if DHS had possessed statutory authority to act on its own, it would have had to promulgate a formal regulation (or “rule”), with notice and public comment, under the requirements of the APA. The Fifth Circuit came to this conclusion in Texas v. United States, a case which resulted in an injunction halting the second Obama executive amnesty (DAPA), which was based on the same theory as DACA.
It is important that President Trump take these steps and finish the job of ending DACA. The same five justices blocked President Trump in virtually the same way last year when he took the step of adding the question “Are you a United States citizen?” to the census—they said that his Administration didn’t offer enough explanation to satisfy the APA. At that time, the Administration was under a time crunch to begin printing the census forms, so the Supreme Court’s APA ruling effectively nixed the census question. But there is no time crunch here. The Trump Administration should not allow the APA to be used to block a perfectly legitimate action again.
More importantly, DACA remains illegal. And the Supreme Court’s decision has ironically allowed an illegal program to remain in place. The rule of law demands that this program be ended as quickly as possible.
Finally, it must be remembered that the millions of young Americans are looking for work in the post-coronavirus-shutdown economy. DACA allows 700,000 illegal aliens in their 20s and 30s to compete for the same jobs that our own young citizens need. This spring, approximately 4 million U.S. citizens finished high school or college and entered a dire job market. DACA isn’t just about restoring the rule of law; it’s also about ensuring that U.S. citizens are first in line for those jobs.
Kris W. Kobach is a former professor of constitutional law and immigration law who represented the 10 ICE agents who sued to stop President Obama’s 2012 DACA amnesty. In 2017 President Trump named him Vice Chairman of the Presidential Commission on Election Integrity. He served as the Kansas Secretary of State from 2011-2019. He is now a candidate for the United States Senate. His website is www.kriskobach.com.