In Early September of 2017, DACA was rescinded by then-Acting Secretary of Homeland Security Elaine Duke via a Department Memorandum. The Supreme Court struck down this memorandum in mid-June of 2020 because it was found to be arbitrary and capricious under the Administrative Procedure Act, which requires a valid reason for all administrative orders. In late July of 2020, a new memorandum was issued by de facto Acting Secretary of Homeland Security Chad Wolf, again rescinding DACA. However, since then two federal courts have found that Wolf is serving illegally as Acting Secretary, and overturned several of his orders, including this DACA rescission, again reinstating DACA. Why didn't (and doesn't) Trump just use an executive order rescinding DACA, sidestepping both the need for a valid reason and the possibility of the person issuing the order serving illegally?

DACA: https://www.dhs.gov/xlibrary/assets/s1-exercising-prosecutorial-discretion-individuals-who-came-to-us-as-children.pdf

Original Rescission: https://www.dhs.gov/news/2017/09/05/memorandum-rescission-daca

Second Rescission: https://www.dhs.gov/sites/default/files/publications/20_0728_s1_daca-reconsideration-memo.pdf

Court opinion overturning first rescission: https://www.supremecourt.gov/opinions/19pdf/18-587_5ifl.pdf

Court opinion overturning second rescission: https://www.nilc.org/wp-content/uploads/2020/09/Batalla-fourth-amended-complaint-2020-08-28.pdf

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    The last document you've linked to is not a court opinion but a complaint: the document filed by the party that initiated the suit to lay out the case being brought before the court. It tells one side of the story only.
    – phoog
    Dec 13, 2020 at 4:24

1 Answer 1


An executive order would not sidestep the need to provide a valid reason. The court found that the memorandum instituting DACA constituted an agency "rule" as defined by the APA, meaning that the rule may only be changed through the agency's APA-compliant rulemaking procedure. An executive order cannot achieve that. Think about it: if it could, the APA would be meaningless, because any "arbitrary and capricious" act would be possible by executive order.

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