How Trump Can End DACA — If He Wants To

Court rulings leave open door for ending Deferred Action for Childhood Arrivals with a different process — but some think judges won't bend

by Brendan Kirby | Updated 26 Apr 2018 at 7:30 AM

President Donald Trump’s latest legal setback over immigration has been widely interpreted as an order prohibiting him from ever ending a quasi-amnesty program started by his predecessor, but several experts insist that is not the case.

The latest defeat came in the form of a ruling Tuesday by U.S. District Judge John Bates in Washington, D.C. declaring that the Department of Homeland Security (DHS) was “arbitrary and capricious” in its decision to roll back the Deferred Action for Childhood Arrivals (DACA) program.

But Bates acknowledged that the executive branch’s ability to enforce the law ordinarily is “subject to review not in a court of law, but rather in the court of public opinion.” He rejected the administration’s assertion that it had no choice — because DACA is illegal and because Texas and other states had threatened to sue.

The judge also delayed his decision from taking effect for 90 days in order to give the administration a chance to explain its rationale more fully for ending the program that shields some young adult illegal immigrants from deportation and authorizes them to work here in the U.S.

That suggests strongly that the Trump administration could end the program without undertaking an arduous appeal to the Supreme Court, according to experts. One option would be for the Department of Justice (DOJ) to convince the judge that the administration’s legal analysis is correct. Short of that, the administration could start from scratch, undergo a formal rule-making process and offer a rationale based on policy considerations.

“The path of least resistance for the administration is to say, ‘Can we satisfy this judge?’” said Jan Ting, a professor at Temple Law School in Philadelphia.

Christopher Hajec, director of litigation at the Immigration Reform Law Institute (IRLI), said the administration could attempt to satisfy Bates by submitting internal memos and other documents about the administration’s internal deliberations to show that it was a serous process and that the legal analysis was not just a pretext.

“The question he wants answered is, did they think about it a lot?” he said.

Judge Referenced ‘Scant Legal Reasoning’

Bates faulted the administration for offering “scant legal reasoning” to explain its departure from the government’s earlier view that DACA was legal. He wrote that courts may review government actions if officials offer legal justifications for their actions.

“Under this rule, an official cannot claim that the law ties her hands while at the same time denying the courts’ power to unbind her,” he wrote. “She may escape political accountability or judicial review, but not both.”

Even if the judge ultimately does not buy the administrations legal analysis, Hajec said, officials could go back to the drawing board even if the judge does not ultimately buy the legal argument.

“There were innumerable policy grounds the Trump administration, or DHS, could have cited,” he said. “Everyone concedes Trump has the inherent power.”

The Trump administration has shown no signs of wanting to revisit the issue administratively, hover. White House press secretary Sarah Huckabee Sanders on Wednesday renewed the administration’s call for Congress to pass legislation codifying DACA. She reiterated the administration’s contention that the program is illegal.

“President [Barack] Obama went around Congress and created the illegal DACA program. We believe the judge’s ruling is extraordinarily broad and wrong on the law,” she said. “What’s worse is that it creates an incentive for more illegal immigrant youth to come here and to causes them to expect similar judicial policies be applied to them.”

Hajec agreed the administration should take the case to the high court first. He said the ruling essentially holds that Trump cannot reverse an administrative policy using a process similar to the one that the Obama administration used to create it.

“It makes your head spin and raises suspicion that they were searching for something to stop Trump,” he said.

Judge Referenced ‘Scant Legal Reasoning’

Other experts expressed doubt that the Trump administration could make any changes to the DACA procedure that would satisfy Bates or other lower court judges who have ruled against the president.

“They did that with the travel ban — twice,” said Joseph Tartakovsky, a former state deputy solicitor general and constitutional law scholar.

Despite two revisions to the policy barring certain foreigners from entering the United States, Tartakovsky noted, lower courts struck down those orders just as they had the first.

John Eastman, founding director of the Claremont Institute’s Center for Constitutional Jurisprudence, called the judge’s order “utter nonsense.” He argued that judges who have ruled against the president on DACA are determined to save it.

“There is no doubt in my mind that it doesn’t matter how many Ts they cross. They’d just find some other reason to invalidate it,” he said. “This is a lawlessness going on.”

The high court rejected earlier pleas by the Trump administration to review DACA rulings, letting appeals take the normal course. Tartakovsky said the administration has a stronger case with Bates’ ruling since it goes further than the others — actually requiring DHS to take new applications for DACA.

“It’s a greater injury now,” he said. “Instead of saying, ‘You can’t do something’ … You have to affirmatively do something.”

Ting, the Temple professor, said he believes Trump would find a sympathetic audience at the Supreme Court.

“Historically, the Supreme Court has been very deferential to what the Supreme Court calls the political branches … giving them free reign over immigration,” he said.

Eastman suggested that Trump perhaps take a more provocative approach, a page from President Andrew Jackson’s book and ignore lower court rulings on DACA. He acknowledged such a move would generate a massive freakout.

“Maybe it’s time we had a freakout,” he said. “And maybe this president is the only one who could do it.”

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