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Peter Margulies, Mar. 11, 2019
"On March 9, the U.S. Court of Appeals for the D.C. Circuit issued two concurring opinions in an earlier per curiam ruling that had vacated a district court injunction against the military’s restrictions on service of transgender persons. As Judge Robert Wilkins’s concurrence observed, neither the D.C. Circuit’s ruling nor the Supreme Court’s stay of injunctions in two related cases decides the merits. Each nonetheless signals that deference to military judgments may well emerge victorious. But the lack of tailoring—the careful fitting of means to chosen ends—in the military’s transgender policy should prompt the courts to look more closely at the Trump administration’s rescissions of measures followed or implemented by the Obama administration, including DACA and the long-standing omission of a citizenship question on the U.S. census. In a new paper, I discuss the courts’ role in adjudicating these actions by the Trump administration.
... The Trump administration has announced that its primary reason for rescinding DACA is concern about its legality. However, in three tries—one by former Attorney General Jeff Sessions, one by former Acting DHS Secretary Elaine Duke and one last June by current DHS Secretary Kirstjen Nielsen—the Trump administration has not adequately explained the basis for its legal doubts.
Both Sessions and Duke stressed constitutional issues, which are not directly relevant, since DACA presents a statutory question. Nielsen focused on the statutory question but failed to address parallels between DACA and past practice regarding discretion to grant deferred action in hardship cases. Perhaps DHS could distinguish those prior cases, which involved far smaller numbers of grantees than the 800,000-strong DACA program. But DHS has not even tried to make this case. If DACA’s putative illegality has driven the Trump administration’s effort to rescind it (which is now subject to a nationwide injunction in the lower federal courts), the Trump administration with the benefit of three tries should be able to articulate a clear rationale for its position. Its failure to do so shows the lack of tailoring in the DACA rescission."