DACA appears to still be legal according to the Justice Department's top lawyers

In announcing the Trump administration's phase-out of the Deferred Action for Childhood Arrivals (DACA) program Tuesday, Attorney General Jeff Sessions called DACA "an unconstitutional exercise of authority by the executive branch" under former President Barack Obama and argued that President Trump was pushed to review the program by "imminent litigation" from 10 state attorneys general. Trump himself argued that "the attorney general of the United States, the attorneys general of many states, and virtually all other top legal experts have advised that the program is unlawful and unconstitutional and cannot be successfully defended in court."

That's not exactly true, The Associated Press notes, pointing to a letter that more than 100 law school professors and university lecturers wrote to Trump in August calling DACA unquestionably "a lawful exercise of prosecutorial discretion," based on their "years of experience in the field and a close study of the U.S. Constitution, administrative law, immigration statutes, federal regulations, and case law." That also appears to be the official opinion of the Justice Department's Office of Legal Counsel (OLC).

As Harvard law professor Jack Goldsmith points out, the 2014 OLC opinion declaring DACA "a permissible exercise" of executive "discretion to enforce the immigration laws" is still up on the OLC website, "implying that it's still valid for the executive branch." If the office has written a new opinion on DACA, it hasn't posted it to the website yet.

Subscribe to The Week

Escape your echo chamber. Get the facts behind the news, plus analysis from multiple perspectives.

SUBSCRIBE & SAVE

Sign up for The Week's Free Newsletters

From our morning news briefing to a weekly Good News Newsletter, get the best of The Week delivered directly to your inbox.

From our morning news briefing to a weekly Good News Newsletter, get the best of The Week delivered directly to your inbox.

Sign up

"Did Sessions consult OLC on this? If so, did OLC revise its views and/or withdraw the 2014 opinion?" Goldsmith asked on Twitter, adding, "If Sessions didn't consult OLC, what's the status of 2014 opinion? Will it be withdrawn?" He also notes that in 2016, Solicitor General Donald Virrilli argued in favor of DACA before the Supreme Court. This wouldn't be the first time Trump's solicitor general would reverse an Obama-era interpretation of federal law, Adam Liptak writes at The New York Times, but as Virrilli discovered, "such legal U-turns can try the justices' patience," especially the conservative justices. "Lawyers in the solicitor general's office, the elite unit of the Justice Department that represents the federal government in the Supreme Court, know that switching sides comes at a cost to the office's prized reputation for continuity, credibility, and independence."

In any case, if Trump really does "revisit" his DACA decision in six months, he has a legal rationale to fall back on.