The official rationale for Trump’s DACA phase-out is fatally flawed.

The Official Rationale for Trump’s DACA Phase-Out Is Fatally Flawed

The Official Rationale for Trump’s DACA Phase-Out Is Fatally Flawed

The law, lawyers, and the court.
Sept. 7 2017 5:41 PM

No Good Reason

The official rationale for Trump’s DACA phase-out is fatally flawed.

USA-IMMIGRATION/DACA
Demonstrators block roads near the White House to protest President Donald Trump’s plan to repeal DACA on Tuesday in Washington.

Aaron Bernstein/Reuters

The Trump administration announced on Tuesday that it would end the Deferred Action for Childhood Arrivals program because, according to Attorney General Jeff Sessions, the Department of Homeland Security lacks legal authority to continue carrying out the Obama-enacted policy. But it’s the Trump team—and not the Obama administration—that has bungled the legal analysis with respect to DACA. And as a result federal courts can, should, and likely will block Trump’s phase-out from taking effect.

The official explanation for why the administration is ending the program is startlingly incoherent. On the one hand, the Trump administration says that it cannot grant deferred action status to immigrants who arrived in the United States before age 16 because Congress has not authorized the practice. On the other hand, the administration says it will continue to renew deferrals for eligible immigrants who apply in the next month, thus allowing those immigrants to obtain work permits and remain in the country for another two years. How can the administration keep on doing what it says it lacks the statutory authority to do?

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This is not only a logical flaw in the Trump administration’s decision, but a legal flaw too. The Administrative Procedure Act, a 1946 law, empowers federal courts to set aside agency actions that are “arbitrary” and “capricious.” That same law requires agencies to show that their policies are the “product of reasoned decisionmaking.” Federal courts have held that agencies flunk this test when their policies are “internally inconsistent and inadequately explained.” The Trump administration’s DACA rollback is the epitome of inconsistency. For that reason, the courts should send the administration back to the drawing board.

There is a further flaw in the Trump administration’s explanation for its decision to repeal DACA. The claim by Jeff Sessions that the administration lacks legal authority to grant deferrals is contradicted by the Justice Department’s own Office of Legal Counsel, which produced an exhaustive 33-page memo under Obama in 2014 explaining why DHS does indeed have such authority. The OLC reasoned as follows: The Supreme Court has recognized deferred action as a “regular practice”; Congress has enacted a number of statutes that assume the availability of deferred action; and the Department of Homeland Security’s long-standing rules reflect its deferral authority. Neither Sessions nor any other Trump administration official has explained why the OLC’s original conclusion was erroneous.

Consistent with OLC guidance, the Obama administration initiated the DACA program as a way to grant temporary relief to immigrants who came to the country as children, are pursuing or have earned high-school diplomas, or served honorably in the military, and have not been convicted of a felony or serious misdemeanor. Deferrals last for two years, after which eligible immigrants—commonly known as Dreamers based on the failed attempt to enshrine the policy in legislation known as the DREAM Act—must reapply. Deferred action status does not open up a pathway to citizenship, but it does allow Dreamers to obtain work permits and potentially receive Social Security and Medicare benefits down the road. More than 800,000 Dreamers have been granted deferrals since the program’s start.

To be sure, the fact that the Department of Homeland Security has the legal authority to grant deferrals to Dreamers does not mean that it must continue the Obama administration’s DACA program. But as the Supreme Court and the lower federal courts have held, an agency’s action cannot stand if it is based on a mistaken view of the agency’s own power. If the Department of Homeland Security says that it lacks the authority to grant deferrals when in fact it has that authority, then federal courts can set aside the agency’s action until it comes up with a better justification.

As for now, the Trump administration’s explanation does not meet the Administrative Procedure Act’s “reasoned decisionmaking” standard. The Department of Homeland Security says that it will reject all new requests for deferred action status filed after Wednesday, but that it will continue to process certain renewal requests received before Oct. 5. The decision to continue renewals for another month amounts to an implicit acknowledgement that—consistent with the Office of Legal Counsel’s conclusion—the Department of Homeland Security has the power to grant deferred action status. And yet the agency’s only explanation for winding down the policy is that it lacks the authority that it simultaneously seems to be exercising.

Hopefully, Congress will promptly pass legislation that protects Dreamers from deportation and offers them a pathway to citizenship. In the interim, though, Dreamers can look to the federal courts for short-term relief. Fortunately, the Administrative Procedure Act gives federal courts the tools to stop the Trump administration’s unreasoned decision from taking effect.

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