Chief Justice John Roberts held in his recent majority opinion in Dep’t of Homeland Security v. Regents of the Univ. of California that the U.S. Department of Homeland Security (DHS) under President Trump did not employ “reasoned decisionmaking” when it rescinded the Deferred Action for Childhood Arrivals (DACA) program, which had accorded a hold on deportation, conferred lawful presence (although not the more-formal lawful status), and the potential for ancillary benefits, including employment authorization and a Social Security Number. By its terms, those with DACA were eligible to request a form of approved departure from the United States known as “advance parole” for a documented reason, such as a family reason or international study.

The legal and historical roots of DACA run deep and represent one form of prosecutorial discretion exercised by DHS during the Obama administration. When determining how DACA ended up before the Supreme Court, in the majority opinion, Chief Justice Roberts determined that DHS did not properly consider what he called “forbearance” and failed to consider whether DACA recipients’ participation in the various benefits and participation in the social order caused what he labeled “reliance interests.” Consequently, the Supreme Court found that the way DACA was ended had been “arbitrary and capricious” under administrative law, vacated the DHS memo rescinding DACA (known as the “Duke Memo”), and remanded the case back to the lower courts who originally heard the rescission cases. We read this holding as requiring DHS to reinstate DACA to how it existed in 2012.

Nearly six weeks after the Supreme Court decision, Acting DHS Secretary Wolf issued a July 28, 2020 memorandum, appearing not to have read the authoritative decision, which had rolled back the DACA program to the status quo ante. Indeed, we believe that this misbegotten response violates the Court’s holding and is illegal. While the Wolf memorandum indicated that DHS would make “certain immediate changes to the DACA policy to facilitate my thorough consideration of how to address DACA in light of the Supreme Court’s decision,” many advocates and legal scholars, including the two of us, believe this defiance violates both the Supreme Court decision and an order by one federal judge in Maryland who ordered DHS to process new DACA applicants according to the original terms of DACA; this would allow approximately 300,000 new individuals to request DACA for the first time. Rather than follow the order of the Supreme Court and a federal district court, the Wolf Memo masks its defiance of court orders by claiming more time to reach a decision on how to proceed with DACA and by gutting the policy in half by 1) rejecting first time applicants; 2) effectively ending advance parole requests except in “exceptional circumstances”; and 3) slashing renewal periods for existing DACA recipients from two years to one year.

We believe the material changes to DACA by the Wolf Memo violate the ruling of the Supreme Court and the federal court. Wolf lacks the authority to amend the original terms of DACA, and must immediately follow the law until he can or is able to devise a legitimate reason to do otherwise. Wolf is not authorized to simply make this up as he goes.

In justifying the steps he was taking, Wolf wrote in the memo that new applicants for the program had fewer, if any, reliance interests on the continuation of DACA. In our view, federal courts scheduled to hear the DACA case on remand (and the Supreme Court) should issue a restraining order on his proposed revisions, order DHS to reinstate DACA as it existed in 2012, and admit those who were excluded by the mistaken rescission efforts. In addition, a recent letter to a federal court in New York, plaintiffs in one rescission case indicated their desire to amend their lawsuit and add new claims challenging the Wolf Memo on statutory and constitutional grounds.

President Trump has cruelly vacillated on his support for DREAMers, saying he would take care of them and immigration reform “by executive action,” in remarks to reporter José Díaz-Balart. Ironically, it was his predecessor’s executive action and use of discretion that led Attorney General Sessions and DHS officials to determine DACA was “illegal.” This is the Gang that Can’t Shoot Straight, and they must now adhere in a timely fashion to the rule of law. Neither the Supreme Court majority nor we believe these officials acted in accord with their basic legal requirements, and they are wrongly continuing to behave in unlawful fashion. These students are a national treasure and deserve a pathway to permanent residence. Properly re-aligning DACA will not accomplish this, but Congress should do so. Now is the time for the Trump Administration to “love” DREAMers and properly administer this successful program, as they weigh their options. No matter the final decision, those would-be DACAmented students have kept their part of the bargain, and we owe them no less.

Michael A. Olivas is the William B. Bates Distinguished Chair in Law (Emeritus) from the University of Houston Law Center, and the author of 16 books, among them Perchance to DREAM: A Legal and Political History of the DREAM Act and DACA (NYU Press) and co-author of The Law and Higher Education: Cases and Materials on Colleges in Court (Carolina Academic Press, 4th ed.)

Shoba Sivaprasad Wadhia is Associate Dean for Diversity, Equity, and Inclusion, Samuel Weiss Faculty Scholar, and Director of the Center for Immigrants’ Rights Clinic at Penn State Law-University Park. She is the author of two books: Beyond Deportation: The Prosecutorial Discretion in Immigration Cases (NYU Press) and Banned: Immigration Enforcement in the Time of Trump (NYU Press); as well as co-author of textbook Immigration and Nationality Law: Problems and Strategies (Carolina Academic Press).

Suggested citation: Michael A. Olivas and Shoba Sivaprasad Wadhia, Remove the Sword of Damocles from DACA, JURIST – Academic Commentary, August 12, 2020, https://www.jurist.org/commentary/2020/08/olivas-wadhia-daca-dhs-memo/.

This article was prepared for publication by Gabrielle Wast. Please direct any questions or comments to her at commentary@jurist.org