In the previous chapter, President Trump Pushes to Repeal DACA, we discussed President Trump’s general stance on immigration and how he attempted to use the Executive Order to push his agenda on immigration. His attempt to repeal DACA through Executive Order ultimately failed in court, as discussed here next.

Public Reaction to DACA Rescission

Protests were sparked in a number of cities across the country, including major cities such as Los Angeles, Chicago, and Washington D.C. reacting to President Trump’s announcement that he was ending DACA. The reaction among Democrats was fairly consistent in their feeling that rescinding DACA was cruel and unnecessary. The reaction among Republicans was mixed, as some opposed President Trump’s decision to rescind DACA, while others praised the president giving Congress time to find a more permanent solution for DREAMERs. A more permanent solution has always been the goal, and the prevalence of DACA did not have any bearing or effect on the ability of Congress to pass new immigration legislation. In total, most people found President Trump’s decision to end DACA troubling and shortsighted to say the least. 

President Obama Reaction to DACA Rescission

Former President Obama had sharp criticism for President Trump’s decision to rescind DACA. He penned a long post on his Facebook page stating that he strongly believes that children who were brought illegally to the United States through no fault of their own should not be kicked out and forced to go back to a country they do not know, and in many cases do not speak a language other than English. He pointed out how many of these children don’t even realize they are undocumented until they try to get a job, apply for college, or even when they try to get a driver’s license. President Obama stressed that these kids pose no threat to anyone, and that kicking them out won’t have any real positive economic or social impact on the country. Then Senator John McCain (R) shared in President Obama’s sentiment. Senator McCain stated that while he disagreed with President Obama’s unilateral Executive Order creating DACA, he agreed that the rescission of DACA is an “unacceptable reversal of promises and opportunities” that were given to DACA recipients.

Multiple States and Washington DC File Lawsuit Challenging DACA Rescission

President Trump’s attempt to rescind DACA was immediately met with significant legal challenges. On September 6, 2017, a lawsuit was filed on behalf of fifteen states and Washington DC entitled New York v. Trump asking a federal district court to stop the rescission of DACA. A separate lawsuit was filed by the California Attorney General stating that 25% of DACA recipients nationwide live in California and that President Trump’s attempt to rescind DACA is the most impactful in the state of California. Other lawsuits followed, including one filed directly by DREAMERs and another filed by the University of California.

After a number of judicial decisions by various federal courts, DACA continued to survive. Ultimately, the Supreme Court ruled against President Trump’s attempt to invalidate DACA simply because the administration failed to give an adequate reason why as required under a federal law known as the Administrative Procedure Act. It’s important to understand that the Court here told the President that he has the authority to end DACA, but if he plans to do so, he has to give a legitimate reason for doing so as required by a separate law. President Trump insisted that he would make another attempt to fully rescind DACA in a future Executive Order.

The Decision in Trump v. NAACP

In June 2020, the Trump administration was dealt another serious blow in the fight against DACA. The United States Supreme Court affirmed three different injunctions blocking the recission of DACA. This was a huge victory for the NAACP and African immigrants. Most often, DREAMERs are thought of to only be Latinx. The case of Trump v. NAACP highlighted the need to recognize that DREAMERs come from all over the world. As President Trump lost court case after court case relating to DACA, two main reasons surfaced as to why he was unable to rescind DACA; improper procedure, and directives coming from people who were in power improperly. While fixing an immigration enforcement directive in an Executive Order might seem like it would be simple enough, it proved likely impossible to do with a Secretary of Homeland Security whose capacity and authority to sit in the role is in serious question.

The Questionable Appointment of Chad Wolf as Secretary of Homeland Security

A senior governmental position such as Secretary of Homeland Security is filled just like any other senior federal position, by an appointment from the President, and confirmation by the Senate. This goes for federal judgeships and other senior positions in the executive branch of government. The position of Secretary of Homeland Security is important to the enforcement of immigration laws, as the creation of DACA was through a memorandum by then Secretary of Homeland Security Janet Napolitano. The most recent Secretary of Homeland Security to actually be confirmed by the Senate was Kirstjen Nielsen, she however resigned from her post in April 2019. President Trump then turned to Chad Wolf who assumed the role without ever being confirmed by the Senate. Wolf has continued to serve in the role since his appointment without ever facing a confirmation hearing of any kind, which we learn next, is not constitutionally acceptable.

Final Ruling Reinstating DACA

As Secretary Wolf has not been confirmed by the Senate, his designation had always remained as “acting” Secretary. His leadership and ability to set policy has been strongly scrutinized. His attempts at suspending DACA through the Wolf Memorandum was ultimately fully shot down by a federal judge. Judge Nicholas Garaufis concluded that Wolf was not lawfully serving as Secretary of Homeland Security when he issued the Wolf Memorandum, and as such, the Wolf Memorandum was invalidated. Judge Garufis ruled that Wolf benefitted from an “invalid order of succession” in how he was able to assume and continue his position without a Senate confirmation vote. This ruling restored DACA to its original form under President Obama. Judge Garufis later directed the Trump Administration to start accepting and processing new DACA applications again as they have been on hold since late 2017. 

A New Administration Promises a New Approach

These last four years under President Trump have proven difficult for many who are trying to travel the tangled and complicated road of immigration law. Various ethnic and religious groups have been targeted by executive policy and executive orders under the slogan of “America First.” These additional restrictions and measures were viewed as arbitrary and prejudicial by many, and the courts have agreed in many cases. President-Elect Biden promises a different approach; one that embraces diversity and a more sensible approach on immigration overall. 

A look at how a Biden Presidential Administration will approach DACA and immigration policy in general is discussed in the next chapter: President-Elect Biden’s Promises to Reinforce and Expand DACA.