Review of the federal district court decision today, December 8, 2020, and the U.S. Supreme Court decision of June 18, 2020, demonstrate that, even though the Trump Administration likely had the authority to rescind DACA, through plain ineptitude failed to accomplish its policy of curtailing immigration to the United States. It’s first mistake was to fail to state adequate reasons under the Administrative Procedure Act for the rescission; then, afterwards, due to a revolving door of secretaries for the Department of Homeland Security, failed to lawfully appoint its secretary to issue a new decision rescinding DACA.
December 8, 2020 – Today
A New York Federal Judge, entered an order requiring the U.S. Department of Homeland Security to re-instate Deferred Action for Childhood Arrivals.
A short review of the history of the litigation is that first, back in 2017, then Secretary of Homeland Security, Elaine Duke, did not adequately set forth her reasons for terminating the DACA program, contrary to administrative law and procedure. The U.S. Supreme Court ruled on June 18, 2020 that this was “arbitrary and capricious.” In July, 2020, then Acting Secretary Chad Wolf issued a memorandum rescinding DACA in compliance with the U.S. Supreme Court’s order. However, the Federal District Court today ruled that Secretary Wolf never had authority to issue the memorandum in the first place because he was never appointed as required by administrative law. The Government Accountability Office made a finding that upon Kirstjen Nielsen’s resignation in 2019 the Acting Secretary after her was never designated according to the “rules of succession” and because the wrong official assumed the role of Acting Secretary after her, all subsequent appointments were invalid. There have been an unprecedented number of acting secretaries appointed to the Department of Homeland Security since Trump removed Obama’s appointee, Jeh Johnson, on January 17, 2017, totaling five (5).