US District Judge John Bates has ruled that President Donald Trump’s Executive Order rescinding the DACA program initiated by DHA memorandum under ex-President Barack Obama (D) is illegal. He’s gone beyond that: he’s ordered the Trump administration to process new DACA applicants, not just renew existing ones.
Bates’ mistakes are two. One is his ruling that, in effect, it’s illegal to rescind a Department Memorandum by Executive Order. Of course, this is erroneous. A Department Memorandum is not statute; it’s not even a Regulation. It has no legal force beyond being a Cabinet-level equivalent of an EO. As such, it’s subordinate to Executive Orders and available to cancelation by same. At worst, the issue is a quibble, easily correctable by an EO instructing the subordinate DHS to rescind its Memorandum.
Bates’ next mistake is claiming the EO is illegal because it offered insufficient support to its claim that the DACA program is illegal. This is simply irrelevant. See above: it’s sufficient for the President to instruct a subordinate Cabinet to do a thing, so long as the thing itself is legal. There are no statutes barring a President from instructing the rescission of a Department Memorandum; such a statute would be unconstitutional, anyway, trampling on the separation of powers as one would. No explanation for why a Memorandum should be rescinded is necessary, however useful one might be.