Trump may be DACA participants' best hope, but will Democrats play ball?
By Nolan Rappaport

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In June 2012, the Obama administration’s DHS Secretary, Janet Napolitano, issued a memorandum that established the Deferred Action for Childhood Arrivals (DACA) program. Five years later, the Trump administration’s Acting DHS Secretary Elaine C. Duke issued a memorandum that rescinded Napolitano’s memorandum.
Several groups of plaintiffs prevailed in lower court challenges to Duke’s memorandum, and the Trump administration appealed to the Supreme Court.

In a decision rendered on June 18, 2020, the Supreme Court made an initial finding that, “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.”

The Administrative Procedure Act requires federal agencies to engage in reasoned decision making and directs the courts to set aside agency actions if they are arbitrary or capricious. The Court found that DHS failed to consider whether to retain the forbearance of removal proceedings and what, if anything, to do about the hardships that terminating the program might cause to DACA participants. This “dual failure raises doubts about whether the agency appreciated the scope of its discretion or exercised that discretion in a reasonable manner.”

Accordingly, the Court remanded the case to DHS so that it can consider the problem anew.

This leaves the matter in the hands of the Trump administration, which now has detailed instructions from the Supreme Court on how to end the DACA program properly.

This is a “be-careful-what-you-wish-for-situation”


Published originally on The Hill.

Nolan Rappaport was detailed to the House Judiciary Committee as an executive branch immigration law expert for three years. He subsequently served as an immigration counsel for the Subcommittee on Immigration, Border Security and Claims for four years. Prior to working on the Judiciary Committee, he wrote decisions for the Board of Immigration Appeals for 20 years. Follow him on Twitter @NolanR1 or at