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How the Trump Administration Eroded Its Own Legal Case on DACA
When the Supreme Court hears arguments on Tuesday, the administration’s attempts to end the program protecting “Dreamers” could rest on a top aide’s actions in 2017.
WASHINGTON — When Attorney General Jeff Sessions appeared before news cameras at the Justice Department in early September 2017 to announce that President Trump was ending deportation protections for young undocumented immigrants, he knew the administration had left itself more legally vulnerable than it should have.
At a contentious meeting in the White House Roosevelt Room several days earlier, Elaine C. Duke, then the acting secretary of homeland security, had broken with the rest of Mr. Trump’s team and balked at its demand that she issue a memo ending Deferred Action for Childhood Arrivals, the Obama-era program known as DACA that shields immigrants who were brought to the United States as children.
Ms. Duke was deeply bothered by the idea that she could be responsible for deporting hundreds of thousands of young people from the country they considered their own. And she did not want her name on the policy rationales put forth by Mr. Sessions; Stephen Miller, the president’s powerful immigration adviser; and others who argued that the program encouraged new waves of illegal immigration and was an undeserved amnesty.
She eventually relented under merciless pressure. But her refusal to cite their policy objections to the program is now at the heart of what legal experts say is a major weakness in the government’s case defending the termination of the program, which will be argued on Tuesday at the Supreme Court.
The bare-bones rescission memo by Ms. Duke, a career civil servant who volunteered with an immigrant aid group in her free time, relied solely on an assertion by Mr. Sessions that it was unlawful. Even Mr. Sessions knew that was the thinnest possible rationale, according to several people familiar with his thinking who spoke on the condition of anonymity to reveal private deliberations. If courts disagreed, Mr. Sessions knew, the president would lose.
That is just what happened in lower courts. Judges have ruled that by citing only a flawed legal rationale for ending DACA — and no policy justifications — the administration’s decision was “arbitrary and capricious,” an illegal exercise of presidential power without any legitimate basis to end a program relied on by about 700,000 people. Had the administration simply declared that it was changing direction as a matter of policy, the rulings indicated, the rescission would have been a routine exercise of executive discretion.
Immigrant rights groups suing Mr. Trump have now zeroed in on the refusal by Ms. Duke, who resigned in early 2018 shortly after a permanent secretary was named, as evidence to bolster their defense of the program. Lawyers for the groups say the back story of her memo has shaped the oral arguments they will make to the justices on Tuesday. If they are persuasive, the court could rule against Mr. Trump in June, just as he enters the final stretch of his re-election campaign.
Ms. Duke did not respond to a request for comment.
The case, one of the most important of the Supreme Court’s term, will address presidential power over immigration, a signature issue for Mr. Trump and one that has divided the nation since he took office. The court’s decision could also have an enormous effect on the lives of the young people in the program, who are known as Dreamers and are broadly seen as sympathetic by large majorities in both parties.
To be eligible for DACA status, applicants had to show that they had arrived in the United States before they turned 16 and were no older than 30, had lived in the United States for at least the previous five years, were a high school graduate or a veteran, and had committed no serious crimes. The status lasts for two years, allows recipients to work legally and is renewable, but it does not provide a path to citizenship.
“The human consequences of the Supreme Court ruling against the DACA plaintiffs would be quite severe,” said Janet Napolitano, who as homeland security secretary created the DACA program in 2012. “Now all of a sudden you’d have all of these young people who’d be living in fear that ICE could pick them up at any time,” she said, referring to Immigration and Customs Enforcement, “and also that now they’d be unable to work.”
The decision to end the program in 2017 was the culmination of an intense, seven-month battle inside the White House to win over a conflicted president, according to several administration officials who watched him struggle with the issue.
“Does anybody really want to throw out good, educated and accomplished young people who have jobs, some serving in the military?” he asked in a 2017 Twitter post. Mr. Trump was sympathetic to DACA recipients, but also mindful that failing to end the program started by President Barack Obama would be seen as amnesty — a betrayal — by his anti-immigration supporters.
The day before making the announcement in 2017, the president huddled with Hope Hicks, a close aide at the time, and Mr. Miller in the small dining room off the Oval Office, hesitating about his decision and agonizing over what to say, according to people close to him. He wanted to appear tough to his voters, but he was anxious about being seen as mean to young people.
In the end, the argument that was most persuasive to Mr. Trump was the one made most forcefully by Mr. Sessions: The program was simply against the law. The next day, in his formal announcement ending DACA, the president wrote, “I do not favor punishing children,” but he quickly added that “the program is unlawful and unconstitutional and cannot be successfully defended in court.”
The president’s conflicting impulses are reflected in the administration’s legal arguments, which have a curious feature. In other contexts, the administration has taken an exceptionally broad view of executive authority. But when Mr. Trump sought to end the program in 2017, he said Mr. Obama had lacked the legal authority to create it.
In other words, Mr. Trump said that creating or maintaining the program was beyond the power of any president, no matter how sympathetic the Dreamers might be. Ms. Napolitano said that approach — expressing sympathy while disclaiming the legal authority to address the problem — could doom the administration’s appeals.
“The administration wants it both ways,” she said. “They want to terminate a very beneficial program, but they want the courts to take the heat for it.”
A brief from an unusual coalition of challengers, including the N.A.A.C.P., Microsoft and Princeton University, acknowledged that the Trump administration was free to make a different policy judgment than its predecessor had. But the rescission, the brief said, “was not based on a discretionary policy judgment.”
“Instead,” the brief said, “it was grounded in a legal determination by the attorney general that DACA is unlawful.”
“That approach,” the brief continued, “allowed the administration to tell the public that it could not permissibly maintain DACA, and that Congress and the courts, rather than the president, thus bore responsibility for the rescission’s human consequences. The government must now live with the consequences of claiming that its hands were tied.”
In basing the rationale for rescission on law rather than policy, the administration subjected the move to judicial review, according to the courts that blocked the move after finding its legal reasoning flawed.
Mr. Obama had created the program through executive action in 2012 after Congress refused to pass the Dream Act, which would have given the young immigrants legal status and an eventual path to citizenship. Mr. Obama’s lawyers argued that the program was legal because it relied on the government’s authority to use discretion in deciding whether to pursue deportation against individual immigrants.
The Trump administration argued that the program was an unlawful exercise of authority by the executive branch, relying on a ruling from the United States Court of Appeals for the Fifth Circuit, in New Orleans, concerning a related program. The Supreme Court deadlocked, 4 to 4, in an appeal of that ruling. Judges in the DACA cases said the two programs differed in important ways, undermining the administration’s legal analysis.
Brad Smith, the president of Microsoft, which employs more than 60 DACA recipients, said there were lawful ways to shut down the program.
“Our brief acknowledges very explicitly, based on the issues that we’ve raised, that we’re not suggesting that there would be no basis for a rescission of DACA,” he said. “But if there is going to be a rescission of DACA, it has to be done in the right way and it has to be done for sound reasons.”
The administration, by contrast, has argued that its determination that DACA is unlawful could not be second-guessed by the courts. Last year, the United States Court of Appeals for the Ninth Circuit, in San Francisco, rejected that view.
It acknowledged that presidents have broad powers to alter the policies of earlier administrations but said the legal rationale offered by the Trump administration for rescinding DACA did not withstand scrutiny. The court also questioned “the cruelty and wastefulness of deporting productive young people to countries with which they have no ties.”
A federal judge in Washington, John D. Bates, gave the administration a second opportunity to justify the rescission, and Kirstjen Nielsen, the homeland security secretary at the time, responded with a three-page memorandum. It mostly relied on the earlier rationales in Ms. Duke’s memo, but added one more, about the importance of projecting a message of resolve in light of recent events.
“Considering the fact that tens of thousands of minor aliens have illegally crossed or been smuggled across our border in recent years and then have been released into the country owing to loopholes in our laws — and that pattern continues to occur at unacceptably high levels to the detriment of the immigration system — it is critically important for D.H.S. to project a message,” she wrote, “that leaves no doubt regarding the clear, consistent and transparent enforcement of the immigration laws against all classes and categories of aliens.”
Judge Bates said that justification was “not without its logical difficulties: After all, DACA is available only to those individuals who have lived in the United States since 2007.” He rejected the new rationale, calling it “too little, too late.”
This article includes reporting from the book “Border Wars: Inside Trump’s Assault on Immigration,” by Julie Hirschfeld Davis and Michael D. Shear.
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