Noah Feldman, Columnist

Judge's Ruling Isn't Going to Save the Dreamers

If one president can decide to implement DACA, surely the next president can decide to restart deportations, legally speaking.

January 10, 2018 at 3:26 PM UTC

By Noah Feldman

Noah Feldman is a Bloomberg Opinion columnist. A professor of law at Harvard University, he is author, most recently, of “To Be a Jew Today: A New Guide to God, Israel, and the Jewish People."

This isn't over.
Photographer: David McNew/Getty Images

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A federal judge in California on Tuesday blocked President Donald Trump from rescinding the Deferred Action for Childhood Arrivals program, which he had planned to phase out in March. The impulse to protect the so-called Dreamers is admirable. But legally speaking, the opinion can’t be correct. If President Barack Obama had the legal authority to use his discretion to create DACA in the first place -- itself a close legal question -- Trump must have the legal authority to reverse DACA on the ground that he considers it to have exceeded Obama’s powers.

District Judge William H. Alsup’s ruling was based on a provision of the Administrative Procedure Act that says executive agency actions must not be arbitrary and capricious. The court held that it was arbitrary for Trump’s Department of Homeland Security to rescind DACA. It reasoned that because DACA was legal, Homeland Security could not rescind it for being illegal.