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I hate this new memo, everything in it, and everyone on the signature or cc line. But, this is really not correct in my opinion. https://twitter.com/mjs_DC/status/1288223498213699584
Contrary to the many headlines/declarations in the wake of the Supreme Court decision, SCOTUS did not order the government to continue DACA. They held that the decision to cancel it was void.
Without more, the agency would be required to keep the program going.
Without more, the agency would be required to keep the program going.
BUT, that didnt preclude them from taking action on the program in the future. (A point Roberts expressly made in the decision).
Some issues were decided with seeming finality (justicibility, reliance interests, etc...) but not critically that DACA could not otherwise be ended.
Some issues were decided with seeming finality (justicibility, reliance interests, etc...) but not critically that DACA could not otherwise be ended.
Turning to todays memo. It clearly withdrew both recission memos (as ordered to do so by the court). It then purported to take interim action curtailing the program subject to full agency review.
I use the word purportedly here because the admin is likely to argue that these actions to curtail the program today are not final agency actions (and thus not subject to judical review under the APA). This will be a new fight this time around. (I think DHS loses on this but 
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If the court finds that it is final agency action, then it will almost certainly find reviewability (since SCOTUS already said this).
But the million dollar question is whether its arbitrary and capricious.
But the million dollar question is whether its arbitrary and capricious.
Here is where my feelings on the matter and my dispassionate legal analysis must part company. A&C review is a very, very deferential standard. The Duke rescission memo was terrible precisely because they basically didnt think they'd be subject to review at all.
This new memo is a very different animal. Duke's memo was basically, "my hands are tied, DOJ says its illegal and I cant let myself get sued" (which is lols in the extreme).
The wolf memo is crappy logic and tells a slanted one sided story (suprise), but it is different.
The wolf memo is crappy logic and tells a slanted one sided story (suprise), but it is different.
It at least purports to grapple with the same issues of reliance, alternative methods, and invoking discretion that the Duke memo simply ignored. Whether this memo still fails A&C review for other reasons is something that I hope will happen (but I fear otherwise).
However, it is not at all the same and we shouldn't say that it is. It a terrible no good very bad memo written by a truly contemptible human. But it isnt on its face contrary to any court order I've read as of yet. (Unless i'm missing something and please please tell me that).
There are good alternate aves of attack here including:
-Wolf may not legally be acting DHS Sec. (therefore all of the above doesnt matter)
-rescission for those who already applied between scotus order and today is A&C due to heightened reliance
-Wolf may not legally be acting DHS Sec. (therefore all of the above doesnt matter)
-rescission for those who already applied between scotus order and today is A&C due to heightened reliance
Important Caveat: the standard for final injuctive relief and TRO/PI is a bit different. Yes likely success on the merits is an important factor, but it is often balanced against harm to either side. Its hard to articulate any DHS harm (particularly WRT the 1 year renewals)
Therefore, its possible for a TRO/PI to issue pausing this memo's implementation if a judge is sufficiently convinced of a decent enough case balanced against very little downside to DHS if they have to go back to the old status quo again. Then its back to fall 2017 again.
