The DACA Cases

Scott and I were discussing the DACA cases and while I had not read the briefs or opinions I thought that a due process argument could temporarily prevail against the Administration if the circumstances warranted.  I think it was fair to say that Scott thought the circumstances could not warrant that, ever.  I agreed that without knowing the facts and precedents for this case the current DACA cases might be losers.

Here are two of the most trustworthy legal discussions, both from Volokh Conspiracy, and a link to the California opinion.


Click to access 1-9-18-DACA-Opinion.pdf

I think these cases are surely eventual losers having read this much.  I think Temporary Relief could be justified based on the Justice Department’s missed argument.  Arguing that DACA was never lawful was a loser where arguing DAPA was never lawful had been a winner.

Read the two articles and the Opinion and come to your own conclusions.

I produced this as filler for the missing Morning Report.  Brent, where are you?

Also, Volokh has a new and better for them home at







15 Responses

  1. New post – DACA Cases.


  2. At the end of the day, aren’t these liberal judges just making it up as they go along in order to stick a finger in Trump’s eye?

    Liked by 1 person

    • There’s a real argument over whether or not and under what circumstances the executive can bypass the request for comments period and Federal Register publishing requirements that are in the law.

      It’s the flip side of some of the arguments made against some Obama regulations that bypassed the same process.

      Of course, now that the roles are reversed so are the positions on that issue. Bad faith arguments are the norm now, not the exception, especially when it comes to process.

      Liked by 1 person

      • jnc:

        Of course, now that the roles are reversed so are the positions on that issue. Bad faith arguments are the norm now…

        I don’t think it is bad faith to say that if Obama had authority to do something based on argument X, then Trump has the authority to undo that something based on argument X, even if one objected to argument X in the first place.


  3. Meaning that they needed to put it in the register and request comments on it?

    I’d say it would be the flip side of how it was originally implemented.

    If Obama went through the comment process and put it in the Federal Register to promulgate it, then Trump has to do the same thing to get rid of it.

    And vice versa.

    But wasn’t part of this Trump just declining to defend against a court challenge brought by Texas, et al, or is that DAPA only?

    Liked by 1 person

    • Texas and several other states opposed DAPA in Federal Court in Brownsville. That Court ruled [correctly, I think] that DAPA simply was too big a change to be done outside the normal APA process. That Court also disciplined the Asst AGs who appeared and lied, and I suspect they will not be able to appear in USDC anywhere for years. They lost their roles as litigators at Justice and may have been fired. I know the AG promised the Court she would discipline them and run training sessions. The Court remarked that the US Attorneys in the case never lied to him and he had never had an AUSA lie to him in Court; his ire was reserved for the Justice Dept. guys from DC.

      I thought everyone figured DACA would be upheld the way Volokh suggested in his article.

      Brent, I think these results would be likely from any serious court, regardless of political leanings. DAPA is too big for an EO but DACA is not. The difference in the discretion issue would turn on the explicit definition that DACAs did not come here as adults but were brought here by adults. Prosecutorial discretion on minors is old as the hills.

      JNC, because of the distinction for minors I don’t think it is as easy as tit-for-tat.


      • Mark:

        Prosecutorial discretion on minors is old as the hills.

        Sure, but DACA was more than just old fashioned prosecutorial discretion. It actually granted rights, namely both work permits and legal authority to remain in the country. That is not prosecutorial discretion, and is not within any authority granted to the president by either the constitution or immigration law.

        I think Brent is right…liberal judges are just making it up as they go. Which shouldn’t surprise anyone, since they openly embrace a judicial philosophy, the living Constitution theory, that amounts to nothing more than exactly that, making it up as you go.


        • Scott, it was unusually detailed, I agree.

          But an internal memo in a local District Attorney’s office might say “don’t arrest MJ smokers near campus unless…” and a whole series of stipulations might follow the unless. I suspect there were hundreds of these around the nation when MJ possession was a felony. I once had to defend a cop before the the APD Board of Review for making too many MJ collars in supposed violation of the MJ discretion rules. I won the battle but lost the war. He went on to become the PC of a suburb, however. He’s now retired in Bertram, a deer hunting paradise outside Austin about 45 mi.

          Now as for the details that were so like regulations a Court was not going to look too hard at Justice Department limits to the discretion issue once it saw it as discretion on the front end. In this case you are missing a reluctance to hinder prosecutorial discretion – separation of powers restraint – because of your own view of executive overreach. You cannot have a DAPA without publishing in the Federal Register and dotting your Is and crossing your Ts but you can have a DACA. Once you can have it, there will be internal rules on its limits. If those rules presuppose prosecution and removal if you fall afoul of them then every US Attorney will want a guideline from Justice. If the guideline is overly detailed the US Attorneys and INS may like it or not, probably some of each, but no Court is likely to interfere.

          BTW, my cop busted students on Mount Bonnell – hundreds in a week – which was 30 blocks from campus in a very wealthy neighborhood not inhabited by students. I got the jail staff to admit they complained because of the overcrowding. I got the panel to see that a word to my cop about the limits of the holding tank would have been sufficient.


        • I believe the sticking point with DACA was/is the issuing of the work permits, that the issuance of them fell outside the law.


        • Agree, George. That was the concern.

          The rationale was that a limit on discretion should be lack of school progress or want of gainful employment; in other words, gang members and bums could be deported, DACA notwithstanding. But that meant they had to allow DACAs to go to college and to work.


  4. I gave up the PL for lent. it’s like a burden has been lifted.


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