Brad Smith, the president of Microsoft, which employs more than 60 DACA recipients, said there were lawful ways to shut down the program.
“Our brief acknowledges very explicitly, based on the issues that we’ve raised, that we’re not suggesting that there would be no basis for a rescission of DACA,” he said. “But if there is going to be a rescission of DACA, it has to be done in the right way and it has to be done for sound reasons.”
The administration, by contrast, has argued that its determination that DACA is unlawful could not be second-guessed by the courts. Last year, the United States Court of Appeals for the Ninth Circuit, in San Francisco, rejected that view.
It acknowledged that presidents have broad powers to alter the policies of earlier administrations but said the legal rationale offered by the Trump administration for rescinding DACA did not withstand scrutiny. The court also questioned “the cruelty and wastefulness of deporting productive young people to countries with which they have no ties.”
A federal judge in Washington, John D. Bates, gave the administration a second opportunity to justify the rescission, and Kirstjen Nielsen, the homeland security secretary at the time, responded with a three-page memorandum. It mostly relied on the earlier rationales in Ms. Duke’s memo, but added one more, about the importance of projecting a message of resolve in light of recent events.
“Considering the fact that tens of thousands of minor aliens have illegally crossed or been smuggled across our border in recent years and then have been released into the country owing to loopholes in our laws — and that pattern continues to occur at unacceptably high levels to the detriment of the immigration system — it is critically important for D.H.S. to project a message,” she wrote, “that leaves no doubt regarding the clear, consistent and transparent enforcement of the immigration laws against all classes and categories of aliens.”
Judge Bates said that justification was “not without its logical difficulties: After all, DACA is available only to those individuals who have lived in the United States since 2007.” He rejected the new rationale, calling it “too little, too late.”
This article includes reporting from the book “Border Wars: Inside Trump’s Assault on Immigration,” by Julie Hirschfeld Davis and Michael D. Shear.