Jared Culver's Picture


  by  Jared Culver

One of the most interesting things you won’t see in major media coverage of the injunction against the Deferred Action for Childhood Arrivals (DACA) program is the fact that then-Attorney General Jeff Sessions had already leaked the spoilers for this story in 2017. DACA beneficiaries should be asking hard questions of President Biden, Attorney General Garland, and DHS Secretary Mayorkas because they were either not smart enough to see what AG Sessions saw coming or they just didn’t care enough to try and correct the legal defects within DACA.

On June 29th, 2017, 10 state Attorneys General sent a letter to the Trump Administration informing them that if DACA was not ended by September 5, 2017, the States would sue to have DACA enjoined. This was a big deal because a test case already existed. The Deferred Action for Parents of Americans and Legal Permanent Residents (DAPA) program had been created after DACA by the Obama Administration in the same manner and same format. The only major difference was the scope of eligible beneficiaries with DAPA being far more expansive. DACA was, in other words, the original movie and DAPA was the sequel.

DAPA failed under review by the same judge who would be hearing the new DACA case. DAPA was enjoined because of the Administrative Procedures Act (APA), which was passed by Congress to bring some hint of accountability to the executive branch’s rule-making. The APA requires that the government explain to the public what they propose to do and accept comments for a period of time. Then, the government is supposed to read all the comments and respond either by changing the rule based on comments received or explaining why they are not accepting the suggestions of the public.

Essentially, the APA is a government transparency statute. If the executive branch is going to write rules and regulate the public, then they must at least face that public beforehand and give them notice. Like DACA, DAPA, which would have provided work permits to millions of aliens otherwise barred from legally working in the United States, was not created under the APA transparency and accountability statute. Instead, the Obama Administration simply issued policy memos. The first time the public saw the memos was when they were already set in stone. No opportunity for comment. No requirement for the Obama Administration to listen even if you had a comment.

This was clearly a violation of the APA. If an amnesty program for millions of people could avoid even basic APA requirements, then what agency actions would need to follow that law? Why would the Obama Administration, reportedly determined to provide relief to these individuals, make such a clear and easily detectable legal mistake for something that was supposedly such a high priority? Of course, this is the same Obama Administration that had 60 Senate votes and a majority in the House for 2 years and never passed the amnesty he promised. Perhaps the issue was not as important as they publicly made it seem.

No matter the motive for the mistake, it was a massive one. Judge Hanen enjoined DAPA before it ever was officially implemented because it had blatantly ignored the requirements of the APA. The Obama Administration did attempt to appeal Judge Hanen’s decision. They found no friendlier ears in the Fifth Circuit or at the Supreme Court. This left DAPA in the dustbin of history, and DACA was whistling past the graveyard.

It was in this legal context that AG Sessions, who was also a former state Attorney General and a former ranking member on the Senate Judiciary Committee, took control of the Department of Justice. He knew that DACA had the same legal defect as DAPA. He knew that if it were challenged in court, DACA would fall for the same exact reason DAPA fell.

The writing was on the wall and AG Sessions spelled it out for the public on September 5th, 2017:

“If we were to keep the Obama Administration’s executive amnesty policy [DACA], the likeliest outcome is that it would be enjoined just as was DAPA. The Department of Justice has advised the President and the Department of Homeland Security that DHS should begin an orderly, lawful wind down, including the cancellation of the memo that authorized this program.”

DACA was going to have to be defended in court and it was going to lose. Rather than face a situation where potentially DACA could have been immediately terminated with no wind down, AG Sessions and then-Acting Secretary Elaine Duke, opted to create an orderly wind down to avoid any sudden judicial rulings that would have been maximally disruptive to everyone involved.

Now, I am not suggesting that the great Jeff Sessions is a prophet. It is true he is one of the best legal minds of his generation and was a fantastic Senator and Attorney General. However, his greatest virtue has always been his courage to stand up for the truth, even when it is unpopular. He was willing to not only see the writing on the wall, but he was willing to do something to prevent the predictable calamity despite the excoriation of the press.

Fast forward to 2021 and one has to wonder whether Biden and Garland lacked the intellect or the courage to do what needed to be done. It is curious to note that the Biden Administration told Judge Hanen that they are going to now create a rule and follow the APA. The truth is that DACA does not just suffer from a procedural APA legal defect. Creating DACA as a rule only solves the one problem and leads to the next which is that the executive branch is not the legislative body empowered by the Constitution to make law. But if it were as easy as promulgating a rule under the APA, why didn’t they try to save DACA six months ago?

JARED CULVER is a Legal Analyst for NumbersUSA

Updated: Mon, Aug 16th 2021 @ 3:25pm EDT

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