Tuesday, June 23, 2020

Why didn't the Trump Administration rescind DACA in a proper fashion?

By Josh Blackman - June 23, 2020 at 11:56AM

Why did the Trump administration lose the DACA case? I think the crass answer is that Chief Justice Roberts would have found something, anything, to nitpick. With so-called "hard look" review, the Chief could have Monday-morning-quarterbacked the most airtight rescission of such a massive policy. But let's approach this question with the veil of ignorance. Why did the Trump administration fail to take the appropriate steps in 2017 and 2018 to properly rescind DACA. Jed Stiglitz offers some speculation. Here is mine.

First, Attorney General sessions wrote the initial letter concluding that DACA was unlawful. He chose to rely entirely on the Fifth Circuit's DAPA decision. Sessions did not offer any additional legal analysis why DACA was illegal or unconstitutional. Why? To do so, he would have had to cast doubt on other areas of immigration law. Consider what would happen if Justice Thomas's DACA dissent was a majority opinion. His analysis would have rendered huge swaths of the INA unconstitutional. Sessions, as a private citizen, no doubt agrees with Thomas. But the AG could only go so far. As a result, he took the unusual step of limiting executive power, but did so in such a precise fashion to avoid upsetting other areas of law.

However, throughout the litigation, DOJ refused to explain precisely why DACA was unlawful. They would only cite on the Fifth Circuit analysis. Indeed, Judge Bates cited my work to demonstrate that DOJ refused to argue this point.

At least one commentator has identified a second possible constitutional argument in the Sessions Letter: "The Obama administration's open-ended reading of certain definitional provisions of the Immigration and Nationality Act (INA) would run afoul of the nondelegation doctrine." See Josh Blackman, Understanding Sessions's Justification to Rescind DACA, Lawfare (Jan. 16, 2018, 8:00 AM) https://www.lawfareblog.com/understanding-sessionss-justification-rescind-daca; see also Texas, 809 F.3d at 150 (noting that the plaintiffs there had asserted "constitutional claims under the Take Care Clause" and the "separation of powers doctrine"). The government does not raise these arguments, however, so the Court will not consider them.

Second, Acting Secretary Dukes, according to the Times, "did not want her name on what she saw as anti-immigrant policy rationales put forth by Mr. Sessions." As a result, she did not offer any additional policy rationales to wind down DACA. Once again, President Trump was burned because he was unable to keep critical positions staffed. Some people argue that the President was unwilling to accept the policy implications of saying that DACA is a bad policy. I don't find this argument persuasive. Trump routinely blames his subordinates for things he ordered, and absolve any responsibility. (Recall how he blamed Barr for firing Berman). I don't think the average American knows, or cares, about the difference between saying (1) DACA is illegal, and (2) DACA is bad policy. Most people conflate the two elements. The problem here was Dukes, not Trump's cowardice.

Third, Judge Bates gave DHS a chance for a do-over. At the time, Secretary Nielsen wrote a new memo. DOJ argued that it merely reaffirmed by Dukes said. I thought it added new rationales. Ultimately, the Chief discarded it. (But Justice Kavanaugh found it dispositive). Why didn't the administration issue an unambiguous and robust defense of the rescission? I think the answer is timing. To issue a new policy would have brought the litigation back to square one. In hindsight, we now know that the rescission took up the entirety of Trump's term in office. But at the time, DOJ may have thought that SCOTUS would granted their petition for certiorari before judgment, and resolve this issue in 2018 or even 2019. Recall that DOJ had some success with emergency stays in the travel ban litigation. But the Supreme Court would not bail out the government. This issue stretched all the way to June 2020, without any clear resolution.

These three factors, I think, contribute to the government's defeat. There is nothing insidious. There was no bureaucratic "resistance." Rather, a combination of incompetence and institutional constraints yielded an inadequate agency action. In normal times, I think any other administration would have squared enough corners. But not with this administration during Blue June.

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