The Trump administration’s plan to wind down DACA, the deferred action policy that grants lawful presence to certain aliens, has been halted by several federal courts. While I have criticized such rulings in light of the deference due to the executive branch in this context, I freely concede that the government justification to rescind the policy was lacking. My recommendation: “The attorney general should issue an additional opinion that explains why he concluded DACA is unconstitutional.” To date, the government has been unwilling to take up this proposal on its own volition.

Now Judge John Bates of the U.S. District Court for the District of Columbia has given the government an ultimatum: Issue a new memorandum explaining the rescission within 90 days, or he will require the government to accept new DACA applications. This ruling is a blessing in disguise. Judge Bates’s order should be sufficient to dislodge whatever institutional inertia exists within the Justice Department. The attorney general should withdraw the 2014 Office of Legal Counsel (OLC) opinion contending that DACA is lawful and explain why the policy runs afoul of the “take care” clause as well as the nondelegation doctrine. These steps will ensure that the government’s policy will be upheld on appeal, and they go a long way toward restoring the separation of powers in this administration, and beyond.

The Justice Department’s Inconsistent Stance on the Take Care Clause

In recommending that the Secretary of Homeland Security wind down DACA, Attorney General Jeff Sessions wrote that the policy was an “open-ended circumvention of immigration laws” and a violation of the take care clause. Yet, as I observed in January, this position creates an inherent tension:

One of the more frustrating aspects of this exercise is that the Obama administration’s 2014 Office of Legal Counsel (OLC) opinion, which affirmed the statutory legality of DACA, has not been withdrawn. (I wrote about that opinion’s flaws here.) The attorney general has the power to rescind OLC opinions, but he has not done so in this case. Though OLC opinions do not bind the Justice Department’s litigating positions, the failure to withdraw that opinion creates something of a divided front.

Bates highlighted this tension in his opinion:

The Department’s explanation for its conclusion that DACA was unconstitutional was equally opaque. The Sessions Letter made a fleeting reference to the Attorney General’s “duty to … faithfully execute the laws passed by Congress,” AR 251, which could be read to invoke the President’s constitutional duty to “take Care that the Laws be faithfully executed.” See U.S. Const. art. II, § 3. But the letter made no attempt to explain why DACA breached that duty.21 This failure was particularly acute in light of a thirty-three page memorandum prepared in 2014 by the Office of Legal Counsel (“OLC”), which deduced “from the nature of the Take Care duty” no fewer than “four general … principles governing the permissible scope of enforcement discretion” and concluded that DAPA, a similar deferred-action program, was consistent with all of them.

Likewise, Judge Nicholas Garaufis of the Eastern District of New York faulted the government for not raising this argument: “The court does not address whether the DACA program might be unconstitutional on grounds other than those identified by the attorney general, as any such grounds are not fairly before the court.”

The government needs to assert this constitutional argument with vigor, or not at all. This “opaque” reference to the take care clause is simply inadequate. Without providing any more explanation, the Justice Department is trying to have its cake and eat it too in trying to change policy without actually restricting executive power.

If the attorney general wants to persuade the courts that the executive branch has determined that DACA is in fact an “open-ended circumvention of immigration laws,” he must withdraw the Obama-era OLC opinion. Once that opinion is withdrawn, the agency lawyers will be free to make new arguments—indeed, these are arguments that courts have faulted the government for not making.

DACA Violates the Non-Delegation Doctrine

In addition to the take care clause, Bates floated in a footnote another proposal of how the government could save DACA:

At least one commentator has identified a second possible constitutional argument in the Sessions Letter: “The Obama administration’s open-ended reading of certain definitional provisions of the Immigration and Nationality Act (INA) would run afoul of the nondelegation doctrine.” See Josh Blackman, Understanding Sessions’s Justification to Rescind DACA, Lawfare (Jan. 16, 2018, 8:00 AM) https://www.lawfareblog.com/understanding-sessionss-justification-rescind-daca; see also Texas, 809 F.3d at 150 (noting that the plaintiffs there had asserted “constitutional claims under the Take Care Clause” and the “separation of powers doctrine”). The government does not raise these arguments, however, so the Court will not consider them.

In the posted cited by Bates, I wrote:

There is a second constitutional claim that has not garnered nearly as much attention: The Obama administration’s open-ended reading of certain definitional provisions of the Immigration and Nationality Act (INA) would run afoul of the nondelegation doctrine. In the brief I submitted to the Supreme Court (Pages 24-25), I contended that the Supreme Court should avoid that broad reading by narrowly construing the INA.

Recently, the Ninth Circuit invoked the same canon to avoid potential non-delegation doctrine problems concerning the Trump administration’s reading of 8 U.S.C. §1182(f). As I noted in this post, the non-delegation argument fails concerning the travel ban because of the president’s inherent Article II powers. In contrast, DACA was expressly not justified on Article II authority, nor could the domestic policy—which applies to aliens of all countries, equally—be so defended (See page 266 of this article).

Breathing new life into the once-thought-moribund non-delegation doctrine has been seen as a priority of the Trump administration. White House Counsel Don McGahn spoke about the nondelegation doctrine at the 2017 Federalist Society National Lawyer’s Convention. As I wrote in National Review:

In a keynote speech, Don McGahn, who serves as White House counsel, lamented the fact that Congress gives the White House too much power. “Often Congress punts the difficulty of lawmaking to the executive branch,” he said, “then the judiciary concedes away the judicial power of the Constitution by deferring to agency’s interpretation of what Congress’s vague statutes.” One would think that a lawyer for the president would relish this abdication by Congress and the courts. But no. Instead, McGahn praised a recent concurring opinion by Justice Thomas, in which Thomas “called for the non-delegation doctrine to be meaningfully enforced” to prevent the “unconstitutional transfer of legislative authority to the administrative state.”

With the DACA rescission 2.0, the executive branch can put its money where its mouth is: recognize that the Obama-era executive action amounts to an exercise of the legislative power, and therefore it must end. We know that there were already four justices on the court in U.S. v. Texas who were willing to affirm the U.S. Court of Appeals for the Fifth Circuit, which ruled against the closely-related DAPA program. With a full bench, there may now be five votes. The government should put this argument in play and let it develop on appeal.

DACA Rescission Memo 2.0 will Moot Other Pending Challenges

The Justice Department has a choice. It can take up Bates’s invitation to provide a new and more thorough justification for rescinding DACA, or it can seek a stay from the U.S. Court of Appeals for the D.C. Circuit, which is unlikely to be friendly. This decision should be an easy one, but often government lawyers make choices that do not make sense to the public (and professoriate) at large. Yet they should seriously consider the opportunity they were given by Judge Bates. As I explained in the New York Times, “The courts are giving the Trump administration guidance on how to exercise [its] authority.” I added that Judge Bates’s decision “actually gives Trump a chance to clean it up and issue a new memo that will stand up on appeal.”

There is one other compelling reason to take such a step: Issuing a new memo will moot other pending challenges to the DACA rescission. If the agency can strengthen the statutory and constitutional objections to DACA, and also include some policyrationales why they chose to wind DACA down—lack of resources and new priorities—district courts in Brooklyn and California will have to strain much harder than they did to rule for the challengers. In addition, providing a stronger legal basis will weaken the argument that the DACA rescission is merely a pretext for the president’s purported anti-Hispanic animus. There is also a wild card: if the Supreme Court upholds the travel ban in June, without reference to the president’s campaign statements and tweets, the same district courts will have a tougher time establishing a claim to invidious discrimination.

Much like travel ban 3.0 improved upon travel ban 2.0, DACA rescission 2.0 will improve on DACA rescission 1.0. And, as the Supreme Court seems poised to uphold Travel Ban 3.0, the court in the future will be able to more easily uphold DACA rescission 2.0.

Cross-Posted at Lawfare