DACA Isn’t Safe Forever

Credit: Diego G. Diaz, Shutterstock.

Federal Agencies, those folks who enforce the law under the president’s command, are not allowed to create or destroy regulations in whatever way they want.

Congress passes laws, most notably one called the Administrative Procedure Act, which dictates how an agency must consider new policies. This is what the DACA Supreme Court decision was about.

In particular, there is an idea within this law called the “arbitrary and capricious” rule. When agencies makes decisions, they have to provide strong reasons to the public before they invest time and money in changing direction.

Trump’s Department of Homeland Security broke this law because of the way in which they tried to end DACA. However, DACA itself still isn’t very safe. Here’s why.

“The dispute before the Court is not whether DHS may rescind DACA. All parties agree that it may. The dispute is instead primarily about the procedure the agency followed in doing so.”

– Chief Justice Roberts, writing for the Supreme Court majority.

You might remember DACA’s parent act known as DAPA, which aimed to protect parents of American citizens from deportation. Both these executive agency actions each had two separate programs: (1) forbearance and (2) benefits.

For people who are eligible (which is not easy), DACA or DAPA was aimed to give these people forbearance, which meant the government would decide not to prosecute or deport them on a two year renewable basis. That was the first part.

Secondly, people who qualified would also be eligible to apply for benefits such as Medicare or Social Security, in exchange for all the work and tax payments they’ve made in this country. It was this second part, the benefits, that was deemed illegal under DAPA in a 2015 legal decision by the 5th Circuit. The second part was illegal, but the first part, the forbearance, was deemed legitimate legal action.

In short, this 2015 decision convinced the Trump-led Department of Homeland Security (DHS) to try and perform a 2 for 1 rope-a-dope to try and end DACA. They (the DHS) took the 5th Circuit opinion that declared half of DAPA illegal, then noted that DACA and DAPA were similar legal actions, and used that to conclude that all of DACA was illegal and so it must be rescinded in full.

You see the issue? Their policy took a legal decision that implied that half of DACA was illegal, and then used that as a justification as to why 100% of DACA was illegal. Supreme Court precedent had already established that this kind of sleight of hand violates the procedural law I mentioned up top. This trickery is why the government lost.

This DACA case wasn’t just a victory for immigrants across the country, it was a victory for competent government. This administration’s entire governing style could be described as: make cruel decisions in an arbitrary and capricious way, then scheme your way out of avoiding the consequences. Thankfully, the law didn’t allow for this in this case.

But this issue isn’t over. Trump does still have the authority to end DACA. The Administration can still turn around and come up with new reports and explanations for ending the program. And unless they’re voted out of office this November, they will succeed.

Hi there. I write about public policy, politics, the presidency, and culture.

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