"But the Dreamers can come back with two rebuttals. First, the Napolitano memo announcing DACA and the Duke memo rescinding it are not equivalent. The Napolitano memo set forth criteria by which DHS officials should evaluate deferred action applications, but it emphasized that officials should exercise discretion “on an individual basis.
” By contrast, the Duke memo is categorical: If a Dreamer applies for deferred action after Tuesday or seeks renewal of deferred action status after October 5, then the request will be rejected. The Napolitano memo was, at least arguably, a policy statement. The Duke memo is more difficult to interpret as anything other than a hard-and-fast rule.
Second, even if the initial DACA memo needed to go through notice and comment, that does not mean the Trump administration can rescind the memo without heeding the Administrative Procedure Act. The U.S. Court of Appeals for the D.C. Circuit has held that the notice-and-comment requirement applies even when an agency seeks to rescind a “defectively promulgated” regulation. Under those circumstances, the proper course is for the agency to solicit public comments as it decides how to address the defect it has identified. The agency does not get a free pass to disregard the Administrative Procedure Act just because a prior administration did so. Two procedural wrongs do not make a right."
http://www.politico.com/magazine/story/2017/09/05/the-legal-flaw-with-ditching-daca-215579
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