4 ms·

My understanding is that DACA originally was entirely created out of an executive order, ie: there is no legislation backing it. The main argument I've seen is

by kyrra 6y ago

My understanding is that DACA originally was entirely created out of an executive order, ie: there is no legislation backing it. The main argument I've seen is that it was created out of the executive, so any future executive should be able to come forward and revoke it, assuming they follow the proper comment process and notices.

ceejayoz 6y ago
That'd be the Executive legislating, not the Court. The Court said the procedure for revoking that order didn't follow the Administrative Procedure Act. They didn't rule at all on the legality of the order itself, in either direction.
lisper 6y ago
The legislation requires the administration to justify its actions. The creation of DACA provided such a justification, the repeal didn't. So stopping the repeal is just temporary. The Trump administration will try again, just like they did with the Muslim ban, and eventually they will succeed unless the clock runs out first.
- rrss 6y ago
  > The creation of DACA provided such a justification Did the Court have an opinion on this in this ruling? I thought it didn't, in which case the creation of DACA has never been held to this "arbitrary and capricious" standard.
  - lisper 6y ago
    I don't know. It's possible that the justification for the creation of DACA was just as deficient as that for its repeal but that no one ever bothered to challenge it in court. I don't know the history. But given how rabid Republicans have been at challenging everything else Barack Obama ever did, that seems improbable to me.
    - rrss 6y ago
      I think what happened is some States that wanted it gone told the Attorney General that they would challenge it as a violation of the APA unless it was rescinded, but then it was rescinded, so that lawsuit was never filed. EDIT: it was filed, not sure if it's still pending or what, see https://news.ycombinator.com/item?id=23565025 https://news.ycombinator.com/item?id=23565025
- zaroth 6y ago
  > The creation of DACA provided such a justification, the repeal didn't. I quoted this below from Justice Clarence Thomas, but it also directly responds to your point; > DHS created DACA during the Obama administration without any statutory authorization and without going through the requisite rulemaking process. As a result, the program was unlawful from its inception. That’s from the dissent. The majority ignored this like it doesn’t matter. Rules for thee but not for me.
  - lisper 6y ago
    You should consider the possibility that the majority ignored it because it isn't true. DACA started in 2012 so the Republicans had four years to mount a legal challenge on those grounds. The fact that they didn't is evidence that Thomas is simply wrong.
    - zaroth 6y ago
      The judicial history is complex. Expanded DACA from 2014 actually was challenged under APA grounds, the 5th circuit upheld the stay, it went to the Supreme Court, which ruled 4-4 on it meaning the 5th court ruling stood which held that it violated APA; > On November 9, 2015, a divided panel of the Fifth Circuit Court of Appeals upheld the district court’s order granting the preliminary injunction. The majority accepted the lower court’s findings that Texas has standing to bring this lawsuit based on the additional costs it would incur to issue driver’s licenses to beneficiaries of expanded DACA and DAPA. The court acknowledged that judicial review is unavailable under the APA where a matter is committed to agency discretion and that the government’s immigration enforcement priorities fall squarely within this category; nonetheless, the majority also found that the plaintiff states were likely to prevail on their claim that the federal government should have pursued notice-and-comment rulemaking because DAPA and expanded DACA determinations are non-discretionary. In addition, the majority held that the new deferred action initiatives are arbitrary and capricious because the federal government did not have authority to promulgate them under the Immigration and Nationality Act. [1] - https://www.americanimmigrationcouncil.org/research/legal-challenges-executive-action-on-immigration https://www.americanimmigrationcouncil.org/research/legal-ch...
  - 6y ago

by kyrra 6y ago

ceejayoz 6y ago

That'd be the Executive legislating, not the Court. The Court said the procedure for revoking that order didn't follow the Administrative Procedure Act. They didn't rule at all on the legality of the order itself, in either direction.

lisper 6y ago

The legislation requires the administration to justify its actions. The creation of DACA provided such a justification, the repeal didn't. So stopping the repeal is just temporary. The Trump administration will try again, just like they did with the Muslim ban, and eventually they will succeed unless the clock runs out first.

rrss 6y ago
> The creation of DACA provided such a justification Did the Court have an opinion on this in this ruling? I thought it didn't, in which case the creation of DACA has never been held to this "arbitrary and capricious" standard.
- lisper 6y ago
  I don't know. It's possible that the justification for the creation of DACA was just as deficient as that for its repeal but that no one ever bothered to challenge it in court. I don't know the history. But given how rabid Republicans have been at challenging everything else Barack Obama ever did, that seems improbable to me.
  - rrss 6y ago
    I think what happened is some States that wanted it gone told the Attorney General that they would challenge it as a violation of the APA unless it was rescinded, but then it was rescinded, so that lawsuit was never filed. EDIT: it was filed, not sure if it's still pending or what, see https://news.ycombinator.com/item?id=23565025 https://news.ycombinator.com/item?id=23565025
zaroth 6y ago
> The creation of DACA provided such a justification, the repeal didn't. I quoted this below from Justice Clarence Thomas, but it also directly responds to your point; > DHS created DACA during the Obama administration without any statutory authorization and without going through the requisite rulemaking process. As a result, the program was unlawful from its inception. That’s from the dissent. The majority ignored this like it doesn’t matter. Rules for thee but not for me.
- lisper 6y ago
  You should consider the possibility that the majority ignored it because it isn't true. DACA started in 2012 so the Republicans had four years to mount a legal challenge on those grounds. The fact that they didn't is evidence that Thomas is simply wrong.
  - zaroth 6y ago
    The judicial history is complex. Expanded DACA from 2014 actually was challenged under APA grounds, the 5th circuit upheld the stay, it went to the Supreme Court, which ruled 4-4 on it meaning the 5th court ruling stood which held that it violated APA; > On November 9, 2015, a divided panel of the Fifth Circuit Court of Appeals upheld the district court’s order granting the preliminary injunction. The majority accepted the lower court’s findings that Texas has standing to bring this lawsuit based on the additional costs it would incur to issue driver’s licenses to beneficiaries of expanded DACA and DAPA. The court acknowledged that judicial review is unavailable under the APA where a matter is committed to agency discretion and that the government’s immigration enforcement priorities fall squarely within this category; nonetheless, the majority also found that the plaintiff states were likely to prevail on their claim that the federal government should have pursued notice-and-comment rulemaking because DAPA and expanded DACA determinations are non-discretionary. In addition, the majority held that the new deferred action initiatives are arbitrary and capricious because the federal government did not have authority to promulgate them under the Immigration and Nationality Act. [1] - https://www.americanimmigrationcouncil.org/research/legal-challenges-executive-action-on-immigration https://www.americanimmigrationcouncil.org/research/legal-ch...
- 6y ago