• The Trump administration has rolled back key aspects of DACA in order to review the future of the policy, including preventing new applicants and limiting other benefits for current recipients.
• In a memo, Acting Secretary of Homeland Security Chad Wolf said he was making the changes “in light of the Supreme Court’s decision.”
• Last month, the Supreme Court rejected President Donald Trump’s 2017 decision to end DACA, a move that put similar restrictions in place, including preventing new applicants.
• After numerous reports of new applicants being rejected, a federal judge ruled that the SCOTUS decision meant that DACA needed to be restored to its full status and that the application process must be reopened.
• As a result, the new decision by DHS appears to violate the appellate court’s decision and will almost certainly face legal challenges.

DACA Revisited

The Trump administration on Tuesday announced a series of new restrictions to the Deferred Action for Childhood Arrivals (DACA) including prohibiting new applicants and limiting renewals of current recipients in a move that appears to directly violate a federal court ruling.

The move marks the latest attack by the Trump administration on the program, which was created via executive action by President Barack Obama in 2012 to help young immigrants who were brought to the U.S. illegally before the age of 16, also known as DREAMers.

In September 2017, President Donald Trump announced that he was going to wind down DACA and blocked all new applications, claiming that it was unconstitutional because Obama acted outside his executive powers by creating the program without Congress’ approval.

The Supreme Court rejected that attempt last month in a 5-4 decision. Notably, the Court specifically did not say whether or not DACA was legal or illegal.

Instead, it said Trump could not end DACA because the administration did not give adequate legal reasoning to justify scrapping the program; however, the court did not prevent the Trump administration from getting rid of the program if it came up with more sound legal reasoning.

While Trump did say that he still wanted to end DACA, most legal experts believed that SCOTUS ruling meant that the program, which had been diminished under Trump, had to be restored to its full version before Trump rescinded it in September 2017.

Not only would that mean that the 650,000 DREAMers whose futures had been in limbo for nearly three years would now have security, it also meant that the Trump administration would now have to reopen DACA applications for the estimated 300,000 young immigrants who qualified for the program but were unable to apply since 2017.

Court Rulings

But about a month after the Supreme Court decision, numerous reports began to circulate claiming that the Trump administration was rejecting new DACA applications.

As a result, on July 17, U.S. District Judge Paul Grimm ruled that the Supreme Court decision meant DACA had to be restored to its full status before Trump tried to scrap it, meaning the Trump administration must accept new applicants.

In a court hearing Friday, Trump administration officials said for the first time that they had not “granted nor rejected” any applications, but instead, had put them all “on hold” while the administration decides on the future of the DACA program; however, they also said that some applications were rejected because of an error like missing information or an incorrect fee.

Judge Grimm responded to that new information by condemning the Trump administration for not explaining to applicants why they were being rejected. He also criticized them for not updating the U.S. Citizenship and Immigration Service website, which still said the government was not accepting new applications over a month after the Supreme Court ruling.

The Trump administration said that the website had “outdated and inaccurate information” that didn’t reflect their current policies. That did not satisfy Grimm.

“That is a problem,” he said. “As for the inaccuracy on the website, that has to change and that should be able to change very quickly… It creates a feeling and a belief that the agency is disregarding binding decisions by appellate and the Supreme Court.”

Grimm also told the administration that it must clarify the status of the program in the next 30 days.

DHS Memo

That clarification came in the form of a memo issued by Acting Secretary of Homeland Security Chad Wolf on Tuesday, where he announced that he was “making certain immediate changes to the DACA policy to facilitate my thorough consideration of how to address DACA in light of the Supreme Court’s decision.”

Those changes included rejecting all new DACA applicants, rejecting almost all requests for current DACA recipients to travel outside the U.S. except in “exceptional circumstances,” and requiring current DACA recipients to renew their deferred action and work authorizations every year instead of every two years.

Wolf did say that he was “determined to give careful consideration to whether the DACA policy should be maintained, rescinded, or modified,” but added that based on the evidence he has seen: “I have concluded that the DACA policy, at a minimum, presents serious policy concerns that may warrant its full rescission. At the same time, I have concluded that fully rescinding the policy would be a significant administration decision that warrants additional careful consideration.”

Wolf then went on to outline several reasons why he believes the program is problematic.

First, he said he has “serious doubts” about the legality of offering undocumented immigrants protection from deportation. He argued that Congress should be responsible for deciding legal protections for immigrants and that the executive action that created DACA should not be considered permanent.

Wolf also said he was worried about sending “mixed messages” on the enforcement of immigration laws.

“DACA makes clear that, for certain large classes of individuals, DHS will at least tolerate, if not affirmatively sanction, their ongoing violation of the immigration laws,” he said.

“I am deeply troubled that the message communicated by non-enforcement policies like DACA may contribute to the general problem of illegal immigration in a manner that is inconsistent with DHS’s law enforcement mission.”

Next Steps

Wolf’s memo is highly significant not only because it represents the Trump administration’s first official attack on DACA since the Supreme Court ruling, but also because the ruling appears to directly go against Grimm’s ruling. As a result, it is almost certain to face legal challenges.

“We obviously have no choice but to go back to court,” Mark Rosenbaum, a lawyer who argued against the Trump administration’s move to get rid of DACA in the Supreme Court told the New York Times. “It was illegal the first time, and now it’s a constitutional crisis. It’s as if a Supreme Court decision was written with invisible ink.”

The Trump administration is already on the defense. On Tuesday, unidentified administration officials gave different and even contradictory explanations to different media outlets.

One official told the Wall Street Journal that the interim rules do not go against Grimm’s order because they “constitute a new DHS policy that replaces the DACA cancellation invalidated by the Supreme Court.”

But another administration official also told ABC News that the memo did not create a new program, but served as an “intervening action” while the administration reviewed the policy. 

Right now, an exact timeline is unclear. Officials declined to answer whether or not the review would be completed before the election in November when asked by the Times.

Many experts believe that while Trump is positioning DACA as a key immigration issue in the election, he is unlikely to move on the question before then.

DACA is a complicated issue for Trump, who has long said the program is illegal, but DACA has been unusually popular among conservatives. Last month, a Pew Research Center poll found that 74% of Americans said they support the program, including 54% of Republicans.

By making this announcement but pushing this issue, Trump still can still energize his anti-immigrant base, while also avoiding at least some backlash from people who support the DREAMers—a point Trump himself seemed to hit on that point in a press conference Tuesday.

“We are going to make DACA happy and the DACA people and representatives happy, and also end up with a fantastic merit-based immigration system,” he said, adding that the Supreme Court’s DACA ruling gave him “more power,” though the decision said nothing about extending executive powers. 

Over the last few weeks, Trump has also said that he will deal with DACA through an executive order on immigration. While his team has tried to backtrack those comments, the remarks are still quite ironic, given the fact Trump’s entire reasoning for getting rid of the program is because he claims it was executive overreach. 

See what others are saying: (CBS News) (The Wall Street Journal) (The New York Times)