Lawyers Provided Wrong Justifications; Easily Corrected, But Probably Will Not Be
A federal judge has just issued an order preventing the administration for dismantling the DACA program, even though it conceded that President Trump acted within his legal authority. The problem, the court ruled, was that Trump’s lawyers provided justifications which were not acceptable.
While this problem would ordinarily be easily fixed by adopting a new rationale for the action, its quite possible that Trump will refuse to do so, says public interest law professor John Banzhaf.
The court begins by conceding that: “Defendants indisputably can end the DACA program. Nothing in the Constitution or the Immigration and Nationality Act, 8 U.S.C. § 1101 et seq. (the “INA”), requires immigration authorities to grant deferred action or work authorization to individuals without lawful immigration status.”
However, the judge finds the reasons given for ending the program unpersuasive. As he saw them, the reasons were: (1) DACA was unconstitutional and illegal (which he determined was “erroneous”); (2) that courts have found constitutional defects in a similar program, and (3) that “winding down” the program, rather than just ending it, was wrong.
Under ordinary circumstances, lawyers could simply rewrite Trump’s order to meet the judge’s objections, and this could quickly lead to a reversal of this new order, says Banzhaf, who teaches Administrative Law, including how to do just that.
But, says Banzhaf, given Trump’s frequent statements and tweets about the DACA program and the need to end it, he might be unwilling – for example – to have to now state that DACA was not unconstitutional.
The administration also sought to argue that, if Trump did not act, ongoing litigation would shut down the program even more quickly. The court did not accept that as a valid justification for this new action.
However, it does suggest that this ongoing litigation may well lead to an injunction shutting down the entire DACA program even more quickly that Trump’s action.
Another major problem, says Banzhaf, is that today’s decision failed to force the administration to process new DACA applications for those who would become eligible since the recision was announced.
Once again, we have a new and unnecessary legal mess brought on by Trump’s lawyers; one which will create even more legal problems moving forward, predicts Banzhaf.