Kobach: The Supreme Court’s Convoluted Reasoning in the DACA Case

On Thursday, the United States Supreme Court rendered one of its worst decisions of the year. The Court said that President Trump’s Department of Homeland Security (DHS) did not jump through enough bureaucratic hoops in rescinding the DACA (“Deferred Action for Childhood Arrivals”) amnesty that President Obama’s DHS created by decree. Chief Justice Roberts joined the four liberal justices in ruling against the Trump Administration.

DACA allows virtually any illegal alien up to the age of 31 (as of June 15, 2012, when it was announced) who claims that he entered the United States before the age of 16 to gain “deferred action” and remain in the country. The alien also becomes eligible for employment authorization. In practice, some 700,000 illegal aliens up the age of 39 have received the amnesty—it’s not limited to “children” as the Left pretends.




As I have written previously, the DACA amnesty was blatantly illegal from the beginning. I brought the first case against DACA in 2012 on behalf of 10 ICE agents who were being ordered to violate federal law. In 2013, the U.S. District Court for the Northern District of Texas issued a preliminary injunction agreeing that the DACA amnesty likely violated federal law. Unfortunately, a liberal panel of Fifth Circuit judges subsequently decided that the 10 ICE agents didn’t have standing to sue.

It would eventually take a new president to pull the plug on the illegal DACA amnesty. And that’s exactly what candidate Trump promised he would do. On August 31, 2016, in Phoenix he correctly described DACA as an “illegal executive amnesty.” And he promised that he would “mmediately terminate President Obama’s two illegal executive amnesties in which he defied federal law and the Constitution.”

In September 2017 he made good on that promise. The Attorney General issued a statement declaring that DACA violated federal law. The following day, acting DHS Secretary Elaine Duke issued a memorandum rescinding DACA.

Liberal attorneys then pounced on the Administration, claiming that the Duke memorandum did not contain enough explanation to satisfy the Administrative Procedure Act (APA). In response to the U.S. District Court for the District of Columbia, DHS Secretary Kirstjen Nielsen issued yet another memorandum nine months later, explaining more fully why DACA was illegal.

But now five justices of the Supreme Court have come to the bizarre conclusion that the DACA amnesty, which was completely illegal and which itself violated the APA, cannot be rescinded as easily as it was created. Chief Justice Roberts wrote the opinion. All nine of the justices conceded that DHS has the power to rescind DACA, but the question is “the procedure the agency followed in doing so.”


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