The Supreme Court heard arguments today on whether President Trump can end the DACA program and it appears that DACA will go down in flames. The same thing happened with the Deferred Action for Parents of Americans (DAPA) program. The high court upheld a ruling from the 5th Circuit Court of Appeals that found the program to be unconstitutional. Judging by the comments and the questions from the justices today, DACA will likewise be found to be unconstitutional. In fact even the plaintiffs have decided not to question Trump’s right to end the program and instead argue that the memo put out by Acting Homeland Security Secretary Elaine Duke.
Homeland Security Secretary Elaine Duke set a timeline for DACA’s termination in Sept. 2017. In a memo explaining her decision, Duke said then-Attorney General Jeff Sessions told the DHS that the program is unlawful. The liberal judges on the bench are perfectly content to overlook the law and approve DACA but the other five justices expressed unreserved doubts that the program has a right to exist. Besides the constitutionality, Justice Kavanaugh said that the DHS raised other issues to be considered.
From The Daily Caller
Duke’s memo prompted a flurry of litigation. Federal trial judges in California, New York, and Washington, D.C. blocked the order on a nationwide basis. Neither the plaintiffs nor the lower courts believe Trump lacks the power to terminate DACA. Instead, the challengers say Duke’s memo is “arbitrary and capricious” under the Administrative Procedure Act (APA) and must be set aside.
The APA requires that the government provide clear, reasoned explanations for new policy. By contrast, the plaintiffs argue Duke’s memo is a “superficial explanation” that “fails to explain the Acting Secretary’s reasoning.” The challengers say a second memo former Homeland Security Secretary Kirstjen Nielsen issued on DACA’s termination in June 2018 is similarly deficient.
“It is truly remarkable that a Cabinet-level officer would offer such a cursory explanation for a decision that affects hundreds of thousands of lives and reverses a longstanding and carefully-reasoned government position,” the plaintiffs told the justices in court filings. “The APA requires more.”