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There’s actually little doubt that the Trump administration may wind down DACA if it wants. Indeed, one of the opinions now under review by the Supreme Court states outright that the administration “indisputably can end the DACA program.” The reason the administration is before the justices is thatseveral lower courts held that the Trump administration acted improperly when it failed to adequately explain why it decided to wind down DACA.
As a general rule, the executive branch must provide a reasoned explanation when it seeks to make a policy change that falls within its lawful discretion. The lower courts held the Trump administration’s explanation of why it was ending DACA inadequate because the administration doesn’t explain why it thinks that DACA is bad policy.
But here’s the thing: nothing prevents the administration from drafting a new memo that adequately explains its policy reasoning. The Trump administration could end DACA tomorrow. It just needs to complete a homework assignment first.
And that brings us to a second mystery surrounding the three DACA cases: why didn’t the Trump administration simply produce a new policy memo, rather than litigating these cases all the way to the Supreme Court? If their goal is to end DACA, they’ve chosen a needlessly difficult path to this goal.
The solution to this later mystery may be that, by bringing this case all the way to the Supreme Court, immigration skeptics could win adurable victory that could last well after Trump leaves office. The justices could potentially declare that any program like DACA is illegal, and therefore beyond the power of any future president.
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Broadly speaking, there are three ways the Court could decide these cases.
First, it is possible that the Court could affirm the lower court decisions, handing a narrowvictory to the Dreamers.This outcome is unlikely, given the Court’s Republican majority and the views expressed by several members of that majority in a similar 2016 case.
Second, the Court could hand Trump a narrow victory. It could say that the memos the Trump administration already produced regarding its decision to wind down DACA are adequate, and thus the administration can move forward without having to do any more work.
If the Court takes this second approach, Trump may even pick up a few votes from the Court’s Democratic minority. Liberal Justice Elena Kagan, in particular, has been quite open about her desire to mitigate the Court’s conservatism by pushing for narrow decisions.
Finally, the Court could hand a crushing defeat to DACA beneficiaries — holding that the DACA program is, itself, unlawful. In this last scenario, the Court would not just allow DACA to be wound down under Trump — it would forbid any future president from reviving it.
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Full article goes into a lot more detail.