Let's assume that the Supreme Court will let stand the lower courts' decisions: That rescinding DACA for the bare-bones reason that it is illegal does not meet the criteria laid out in the Administrative Procedure Act.

The administration is then likely to start a second attempt, much like with the "Muslim travel ban".

I wondered whether they could be forthright and say:

We believe that the cultural and ethnic core — the identity — of the United States is Central/Northern European and should stay that way. We ran on this platform. This is why we are in office. We simply fulfill the wish of the electorate by minimizing immigration from non-European countries. Ending DACA is part of this policy.

Would this

  • be sufficient to meet the not "arbitrary, capricious" (Sec. 10, (e)(A)(1) of the APA) requirement?

  • be constitutional? (The "Muslim ban" in its original form violated the first amendment which forbids discrimination by religion; but it does not seem to explicitly prevent discrimination by geography, language or culture.)

2 Answers 2


The "Muslim Ban" wasn't a ban on specific nations that were problematic for vetting documents for immigration purposes. The initial list had seven nations that just happened to all be Muslim Majority nations, though there have been nations that have been added which are not (North Korea being on the list) and the initial placements on the list were determined by a similar list with the previous administration. Having actually read the initial EO at the time, and following up with a search for specific key words, there is no use of the words "Muslim", "Islam", or "Arab" or any forms where the phrase forms a root. It was temporarily held from going into force by the 9th circuit court based on the establishment clause, but was overturned by the Supreme Court and was later amended to remove the language.

Your example second attempt does not read like an EO and DACA is the policy of what to do with illegal immigrants who came to the U.S. while children with their parents and may not have the language skills to function in their culture or society if returned to their de jure nation of citizenship. Most people affected by DACA are in their 20-30s today. DACA itself is neutral with respect to a recipient's nationality (in theory, a Norwegian who meets the criteria can be a recipient, though this may not actually have occured at any point in the program's existence). DACA is also an executive order from the previous administration. EO's are not laws, but rather the president's instructions for enforcement of laws, and while they do have force after one President hands off power to a new president, the new president is certainly within his right to decide to run things differently.

Republican strategy with respect to DACA is more nuanced than you may understand and most of the party (Trump included) are fine with the program, but not the implimentation by an Executive Order (a similar order protecting the parents of DACA recipients was struck down by the Supreme Court on challenge and DACA was likely headed for the same fate had the announcement of it's repeal by the current administration not been made. The charge was that it was not a valid EO as it created an existing program that is not supported by legislation and funding mandates by congress). Legally it has been dead in congress for some time, as Republicans want to use the bill as a bargining chip for concessions for stricter boarder security. This may to some be morally dubious, but "people who love laws and sausage should not see how they are made" is in full effect. It does seem that Trump is perfectly willing to have a law replace DACA in favor of boarder security concessions, and at times I've heard Republican talking heads criticize him for statements which they felt were favorable to unconditional DACA by legislation.

  • This seems not to answer my question, does it? DACA does not mention countries, but factually most people under DACA are from Middle and South America. OK, I'll remove the Norway remark to avoid confusion. Nov 22, 2019 at 15:55
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    It is not correct that Trump and other Republicans are fine with the program but believe it should have been done legislatively. If that were true they could have easily passed laws that effectuated it with democratic votes in the senate if need be Nov 22, 2019 at 16:32

The exact version of the hypothetical DACA rescission rulemaking imagined by the OP would likely be vulnerable to legal challenge because, as the Supreme Court ruled in Motor Vehicles Manufacturers Ass'n v. State Farm Mutual Automobile Insurance Co., 463 U.S. 29 (1983), one of the possible reasons why courts may set aside an agency action as "arbitrary and capricious" is that "the agency has relied on factors which Congress has not intended it to consider". With respect to unlawfully present immigrants who are not eligible for any form of statutory relief under the immigration laws, Congress has not provided much in the way of guidance regarding who should be deported if the executive's resources are too limited to deport all of them. However, the hypothetical statement imagined by the OP would be tantamount to an admission that, if DACA beneficiaries were statistically more European, that might have swayed their decision in favour of retaining DACA. It is difficult to argue that Congress intended for prosecutorial discretion to be exercised in this way.

The courts would most likely avoid the constitutional question, which is more difficult. It is generally accepted that it is constitutional for Congress to enact racially discriminatory immigration policies (although the Supreme Court has never said so in such explicit words). This is a consequence of the "plenary power doctrine" in United States immigration law. On the other hand, the bounds of the President's inherent authority over immigration have not been clearly defined by the courts; at some points the courts have held that immigration policy is the province of the "political branches" (Congress and the executive) while on other occasions they have found it to be an enumerated power of Congress.

  • That ( factors which Congress has not intended it to consider) is an interesting aspect. Sep 4, 2021 at 6:40

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