michael barbaro

From The New York Times, I’m Michael Barbaro. This is “The Daily.” [MUSIC] Today, the Supreme Court begins hearing arguments about whether the Trump administration acted legally when it tried to shut down DACA. Julie Davis on why the outcome of the case may turn on a small act of rebellion by one of the president’s own aides. It’s Tuesday, November 12th. Julie Davis, how exactly did DACA become the subject of a Supreme Court case?

julie davis

Well, since President Trump was a candidate —

archived recording (donald trump) I will immediately terminate President Obama’s illegal executive order on immigration, immediately

julie davis

— he campaigned basically saying that DACA, which was this program that Barack Obama created in 2012 for undocumented people who had been brought to the United States as children, was illegal.

archived recording (donald trump) He defied federal law and the Constitution to give amnesty to approximately 5 million illegal immigrants, 5 million.

julie davis

He was going to get rid of it, which, of course, would mean that they would be vulnerable to deportation.

archived recording (donald trump) That’s over. That’s over, folks. [CHEERING]

julie davis

So he came into office saying he was going to do this, but actually very quickly, started talking very differently about the program.

archived recording I want to ask about undocumented immigrants who are here in this country. Right now, they’re protected as so-called Dreamers. Should they be worried? archived recording (donald trump) They shouldn’t be very worried. They are here illegally. They shouldn’t be very worried. I do have a big heart. We’re going to take care of everybody.

julie davis

And so he was already kind of making noises like maybe he didn’t mean what he said on the campaign trail.

archived recording (donald trump) DACA is a very, very difficult subject for me, I will tell you. To me, it’s one of the most difficult subjects I have.

julie davis

And then he kept on talking that way.

archived recording (donald trump) Well, I have a great heart for the folks we’re talking about, a great love for them. You have some absolutely incredible kids. I would say mostly.

julie davis

And kind of alarmed some of his more hardline advisors like Steve Bannon and Stephen Miller and Jeff Sessions and the attorney general that he had not meant what he had said about being tough on immigration and not meant what he had said about being tougher on enforcement than his predecessors.

archived recording (donald trump) It’s a very — it’s a very, very tough subject. We are going to deal with DACA with heart.

julie davis

So President Trump’s more hardline advisors, the people who want to end DACA and end it for good, are very concerned that he’s been waffling about it publicly. They’re concerned that he’s going to walk back from even wanting to terminate the program at all. So they set a meeting in the Roosevelt Room of the White House. It’s late summer, August, 2017. They’re going to end the program. They just have to figure out how. And into that room walks someone who is not at all on the same page, the acting Secretary of Homeland Security, Elaine Duke.

michael barbaro

And who is Elaine Duke beyond that title? I don’t feel like I really remember her name.

julie davis

So Elaine Duke is a procurement specialist at the Department of Homeland Security, who, when John Kelly is picked to be the White House Chief of Staff, all of a sudden, unexpectedly, becomes the Acting Secretary. She’s not a political person. She is not a Trump loyalist. She certainly does not share the same world view on immigration matters as Stephen Miller and Jeff Sessions and the rest of the people around that table. And in fact, she has a pretty positive view of immigrants and immigration. In her free time, she sometimes volunteers at an immigrant aid group that’s affiliated with the Catholic Church. I mean, she is just not necessarily board with this whole push. But as it turns, out she is critically important to the discussion that’s happening in this room, because as acting Secretary of Homeland Security, it’s her department, in the end, that carries out the program. And it is she who will have to be the one to sign the memo if they’re going to end it.

michael barbaro

So what does Elaine Duke think that this meeting is about? What does she think is going to get accomplished here?

julie davis

She basically thinks this is a meeting to discuss policy options with regard to DACA. And as soon as she gets into the room and sits down and the meeting starts, she very quickly realizes that this is not that at all. She realizes that what this is is basically a procedural ambush, and she is the one being ambushed.

michael barbaro

Meaning these immigration hardliners have made up their minds, and they are looking at her and saying, get on board.

julie davis

Right, and to Elaine Duke, she feels under siege, because they’re essentially saying, we’re going to end this program, and you’re going to be the one to issue the memo killing it. And she feels as if she’s been offered a choice that she can’t make and she’s not prepared to make, and she basically tells them that. She says, you know, this is my area. I’m the acting secretary, and you’re not going to tell me what to do.

michael barbaro

So what happens?

julie davis

What happens afterward is that she is under immense pressure not only from people at the White House, but also from people inside her own department, who are allies of Stephen Miller. She’s being told that this is an illegal program, that it’s completely unconstitutional, and that this administration will never defend it. But she wants to follow the law, and so she says, fine, I will do it. I’m ending the program, but ordinarily, in a case like this, you’d have the secretary of the department that was ending the program lay out an extensive memo for all the policy reasons why they were ending this program. This memo was much more bare bones. It essentially just laid out Jeff Sessions’s declaration that was illegal and unconstitutional.

archived recording (jeff sessions) Such an open-ended circumvention of immigration laws was an unconstitutional exercise of authority by the executive branch.

julie davis

And said, in light of that, we’re ending the program. [MUSIC]

michael barbaro

So she leans entirely on a little bit of language from the Attorney General Jeff Sessions saying that this is illegal. That’s it.

julie davis

That’s right.

michael barbaro

Why is this language important?

julie davis

It’s important because of what it doesn’t say. And it turns out that the way that Elaine Duke wrote this memo was kind of a ticking time bomb that has brought us all the way to this issue of DACA being before the Supreme Court today. [MUSIC]

michael barbaro

We’ll be right back. Julie, what exactly do you mean that the wording in Elaine Duke’s memo became a kind of ticking time bomb? Why is that?

julie davis

It’s important because of what happens next.

archived recording (jeff sessions) Good morning. I’m here today to announce that the program known as DACA that was effectuated under the Obama administration is being rescinded.

julie davis

Jeff Sessions goes out at the Justice Department and announces that the program is ending, and immediately, two things happen. [CHANTING] There are huge protests all over the country. [CHANTING] People demonstrating against ending DACA.

archived recording We’re sitting here, all DACA recipients, to show Trump that we’re not going to be afraid of him, and we’re going to continue to fight not just for Dreamers, but for our families.

julie davis

Very quickly —

archived recording 15 states and the District of Columbia sued the US government today to block — N.A.A.C.P. has become the latest organization to sue Donald Trump over his choice to end the Deferred Action for Childhood Arrivals program. Amazon, Microsoft and Starbucks are getting into the fight to save DACA. Yet another lawsuit has been filed against the Trump administration aimed at saving DACA, calling the president’s move unconstitutional.

julie davis

As these suits wind their ways through the court, it becomes apparent pretty quickly that the way in which the Trump administration chose to do this, the bare bones memo that Elaine Duke issued, becomes a legal vulnerability. By declining to cite any policy reasons for ending the program, they essentially have a much weaker argument to put before the courts than they would otherwise. What they’re essentially doing is saying, our rationale for ending this program is that it’s illegal and unconstitutional, which means that if a judge or if a series of judges disagrees with that assessment, you’re done, and you’ve lost. And in fact, that is what starts to happen.

michael barbaro

So providing a policy rationale for ending DACA is a stronger legal case than just saying, we don’t think DACA is legal. It’s kind of a backup in case that argument falls apart. And that’s exactly what Elaine Duke would not provide in her letter.

julie davis

That’s right. If she had been willing to say, at the time, as Jeff Sessions and Stephen Miller and others were, that DACA is the wrong policy because it promotes illegal immigration, because it makes our country less safe, because it is a perverse incentive for people to try to get into the country without authorization, if she had said any of those things, then that would have given the judges in these cases something to latch on to as a rationale, a defensible reason for having ended this program. But she didn’t do that, because she wasn’t willing to sign on to any of that. And so what they were left with was the simple assertion that this program is not constitutional.

michael barbaro

This seems like a highly solvable problem for the administration, right? I mean why not, as they keep losing these court cases, kind of fill in the rationale afterward? Like basically, go into their homework and say, oh, I left off that last thing, and now I’m going to add it.

julie davis

Well, actually, that’s exactly what the Trump administration does. In the spring of 2018, this is after Elaine Duke has left the administration. They have a new homeland security secretary, Kirstjen Nielsen, who has been confirmed. She submits a supplemental memo that lays out some of the policy reasons that Elaine Duke had not been willing to and says that failing to end it would send the wrong message about clear and consistent enforcement of immigration laws.

michael barbaro

And does that supplemental letter work?

julie davis

Not really. The judge in the case basically says that it has some logical flaws, and overall, it’s just too little too late. You can’t go back and kind of reverse engineer a reason for having made a policy decision. But what it really is is an effort by the president and his advisors to send a political message. He wants to do what he promised. And so the effort is to kind of follow through with that pledge no matter what the consequences. He can still show people that he’s fighting to do what he said he would do. He’s being stymied by the courts. He’s being battled by the Democrats, whatever it might be. But he’s trying to deliver on his promise.

michael barbaro

Right, so he’s able to publicly keep his promise, even if the way he tries to keep the promise means that the thing itself never actually happens.

julie davis

Right. So for instance, while this is all going on, DACA never really ends. As these court cases continue to win their way through the process, the program keeps getting extended and extended and extended. So you have this program that’s frozen in time, that is not accepting any new people, but it’s also not ending.

michael barbaro

So Julie, when the Supreme Court hears arguments on DACA today, what is the court deciding, and how does it relate to the story that you have told us about Elaine Duke and the memo that she wrote?

julie davis

What the Supreme Court is going to rule on is whether or not President Trump had the power to do what he did, to terminate DACA, and to do it in the way that he did it. And that is where Elaine Duke’s memo comes in, because in order to argue to the court that they were on legitimate solid footing for ending the program, the courts have said, at least thus far, that essentially you have to point to policy reasons. Why? This is a legitimate use of presidential power, and if you can’t point to those, then you haven’t met the burden for a legitimate termination of the program.

michael barbaro

I wonder if you think that Elaine Duke knew what she was doing back in the summer of 2017, when she refused to use the language of the hard line immigration folks around her in that room, and, instead, inserted a kind of poison pill, what you call the ticking time bomb, into this memo and into the Trump administration’s entire approach to DACA.

julie davis

That’s a great question I don’t really think so. I think that Elaine Duke, at the time, understood that this program was going to end. She understood her role in the process. She just didn’t feel like she could see her way clear to putting her name on a memo that had a bunch of policy arguments that she didn’t buy into and that she didn’t see as legitimate. I don’t think she expected that all these years later, her memo could be the reason that this program actually might survive.

michael barbaro

It’s hard not to see the parallels between what Elaine Duke did or didn’t do with what we are seeing happen now in the impeachment process. Career government officials, who are told to carry out an order from the president and who are deeply reluctant to do so. And the way that they handle that ends up having very significant implications and outcomes down the line.

julie davis

Yeah, and it’s fascinating to see the different ways in which officials respond to these directives. You have some people saying, let’s try to go along with it as much as we can, except when it is illegal, except when it seems really inappropriate. Let’s maybe bury this transcript in a server so that people won’t get wind of what seems really wrong to us. But they’re all sort of figuring out different ways to maneuver around what they think is the wrong course of action. What we see with the Ukraine matter is they essentially were able to steer around the entire team of foreign policy people and diplomats who were supposed to be handling foreign policy toward Ukraine. And the difference here is that they really needed Elaine Duke, as the acting secretary, to sign this memo. If she hadn’t signed it, they couldn’t in the program. So the outcome was very different there, But I think the dynamic was very similar.

michael barbaro

You’re saying in this case, there was no steering around the career government official. There was no circumventing Elaine Duke.

julie davis

Right, when you’re trying to end a giant program that is operated by a big federal agency, there’s really no way to cut the secretary out of that process, whereas when you’re making a decision about a foreign aid package to a tiny country, it turns out there are lots of different ways to maneuver around the people who are supposed to have input into that decision.

michael barbaro

This makes me think about all the times that President Trump says that he needs his people in the right jobs all across the administration. And when he complains about holdovers from previous administrations and says that these people they get in the way, they muck things up, they don’t carry out his vision. He’s kind of right.

julie davis

Yeah, he kind of is right, because when people in these positions are not personally loyal to him, personally beholden to the president, and when they don’t fundamentally share his view of policy matters, you can get outcomes like this.

michael barbaro

So Julie, turning back to the Supreme Court and to the justices who will hear this case today, what do we expect will happen?

julie davis

Well, it seems from everything we know, the Supreme Court, which now has a conservative majority, will rule 5 to 4 in favor of the Trump administration and say that the president has wide latitude to make these decisions, that he was within his rights to end DACA, that it was done appropriately. But if that’s not the decision, if it goes the other way, it will have a lot to do with the fact that Elaine Duke refused to do exactly what the administration wanted her to do. [MUSIC]

michael barbaro

Julie, thank you very much.

julie davis

Thank you, Michael.

michael barbaro

Oral arguments in the DACA case begin this morning at 10:00 AM. If the court rules against the Trump administration, DACA is expected to remain intact, protecting hundreds of thousands of from deportation. If the court rules for the administration, the White House could shut down DACA, stripping Dreamers of their legal protections and leaving them vulnerable to deportation. Much of the reporting for this episode was done for a book by Julie Davis and Mike Shear, Border Wars — Inside Trump’s Assault on Immigration. We’ll be right back. Here’s what else you need to know today.

archived recording [SPEAKING SPANISH]

michael barbaro

All four leaders of Bolivia’s government — the president, the vice president, the head of the senate, and the leader of the Chamber of Deputies — have resigned amid widespread protests demanding their removal.

archived recording [SPEAKING SPANISH]

michael barbaro