“In the present case, the District Court recognized a procedural right of due process before the rule is rescinded, and also found the Trump administration did not go through the notice and comment procedure.”
I suppose that’s a good point, although what sort of notice and comment procedure did Obama entertain prior to the EO?
Trump did not simply pull the plug, there was ample time given for congress to remedy the situation and there’s been plenty of ‘comment’ in both houses. In addition, seems like due process is built in since each approved application is only for a two year period. If I understand correctly, ending the program simply meant these applications would no longer be accepted for renewal. As the name implies it’s only Deferred.
Neither DAPA or DACA went through notice and comment. Had he done so, it would have been argued that the programs were agency actions pursuant to Congressional authority to create a class of aliens lawfully present. He clearly did not have that power. Prosecutorial discretion does not require notice and comment. But then again, neither does it’s reversal.
It’s all analysis from Youngstown Sheet & Tube v. Sawyer; the Executive gets the most judicial support where he is clearly carrying out the will of Congress, the least when he acts against it, and in the gray area where Congress is silent he can act but only if he has independent Article 2 authority. Article 1 vests all immigration authority in Congress, so there is no Constitutional “gray area” here. Congress did authorize prosecutorial discretion in 8 U.S.C. 1252, and the whole point of DACA was to argue that specific authority. There were a number of reasons why the 5th Circuit said DAPA wasn’t in Texas v. U. S. but I don’t need to go into that here. Or I could if you want.
So DACA is either valid as prosecutorial discretion or invalid as an unauthorized agency rule. The plaintiffs can’t have it both ways.