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'They Haven't Learned Their Lessons': Trump Administration Takes Third Shot At Eliminating DACA

Published: Thursday, July 30, 2020 - 1:38pm
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LAUREN GILGER: It was just over a month ago that the U.S. Supreme Court ruled to uphold the Deferred Action for Childhood Arrivals program, or DACA, which allows immigrants illegally brought to the U.S. as kids to stay and work in the country. But now the Trump administration says it will not accept new DACA applications despite a lower court order explicitly saying it needed to. That's according to a memo released this week from the Department of Homeland Security. The administration will also cut the renewal window for current recipients in half from two years to just one. An official told Politico the department's memo was essentially an action in the case seeking to end DACA and that it allows the administration to keep rejecting new applicants while it continues to try to do away with the program altogether. But how can the administration openly thwart a decision by the courts? For more on this case and the maneuvers we're seeing right now, I spoke with Muzaffar Chishti, senior fellow at the Migration Policy Institute.

MUZAFFAR CHISHTI: Well, there are just too many wrinkles in this lawsuit, and the [Department of Homeland Security's] reaction to this. And I think lawyers are just figuring out how these wrinkles will finally get ironed out, frankly. In some ways, what this new memorandum is trying to do is undo the mistakes of the past and hoping that this thing will work out. Whether it does or no, we don't know. And some court will finally have to decide whether the way they have tried to circumvent the obstacles that the courts have thrown in their way really work out to know. This is the third attempt by this administration to try to terminate DACA. They first tried it in a 2017 memo by Elaine Duke, the then acting DHS secretary, which was based on the letter that she got from Attorney General Sessions concluding that DACA was unlawful. And she said, "We're gonna terminate DACA because it's unlawful." She offered no other policy reasons for terminating DACA. Then, at the invitation of a district court in 2018, they said, "You did not offer any policy reasons." The secretary of Homeland Security, Kirstjen Nielson, in 2018 issued another memo. This time offering some policy reasons. These are the two memos that went to the Supreme Court in its decision in June this year. And the Supreme Court majority decision issued by the chief justice basically said, "Look, you really could have terminated the program. You just did not do it right." And the reason they concluded it — you didn't do it right — is that the 2017 memo by Acting Secretary Duke did not offer any policy reasons for terminating it. And so this memo basically revokes both the 2017 and the 2018 memo and says, "We're now starting on a clean slate," hoping, therefore, that the courts will disregard the memos of 2017 and 2018, and just look at the new memo for adjudicating whether DACA rescission is lawful or not.

GILGER: So what does this mean then for current DACA recipients, those who would like to apply for the program who were, I think, encouraged after the Supreme Court's decision? Is there any recourse for them?

CHISHTI: Well, so what they did is they kind of, they made a choice here. They did not terminate the program with respect to the current DACA recipients, because I think it was clear to them that that would really be flouting the Supreme Court ruling. So they said, "We're just not taking new applicants." And one of the reasons they're saying is "Look,  Supreme Court's big reason for this decision was that people had relied on this program, the, the classic Reliance Interests doctrine. And that the only people who had relied on this were the existing recipients. So we're not disturbing that, but we are not allowing any new applicants to enter the pool because they haven't relied on it," hoping that that will pass the court test.

GILGER: But the administration, as they say, completely expects this to be challenged again in court.

CHISHTI: Exactly. So all the lawyers believe that we are now running this, this is a race against the clock. On one hand, by not terminating the program, this DACA's fate is now pushed to after the election. And with respect to new applicants, this is certainly going to get challenged. And the DHS is hoping that by the time it reaches the Supreme Court for its final adjudication on this one, the elections would have materialized by then.

GILGER: Is this typical or predictable in any way, from your point of view? Either by this administration or just in general, that they would take this tact and sort of just continue on despite the rulings?

CHISHTI: No, this is particularly true for this administration, which just doesn't know how seriously to take court decisions. Because with all their positions on immigration, they have been challenged in the courts repeatedly. And so they just do not want to take the last word from the court. So they push the envelope wherever they can. And this is just one more example of that. The fact that they have tried to do it three times would sort of tell you that they haven't learned their lessons, that most courts in this country think the termination of DACA is wrong, both on policy and on law. I think in the run against the clock, I think everyone is now looking at Congress, that one way to resolve this issue before the election is for Congress to act and sort of save both the courts from ruling on this again and from applicants to live with the uncertainty that they've been living for the last many years.

GILGER: All right. That is Muzaffar Chishti, senior fellow with the Migration Policy Institute, joining us to talk about the Trump administration's latest moves on DACA. Thank you so much for joining us.

CHISHTI: Thanks so much for having me.

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