A federal judge handed immigrants a big win — and gave President-elect Biden a potential crisis.
Late Friday afternoon, a federal district judge ordered the Trump administration to fully reinstate the Deferred Action for Childhood Arrivals (DACA) program, which allows nearly 700,000 undocumented immigrants who came to the United States as children to live and work there.
The case is Batalla Vidal v. Wolf. Judge Nicholas Garaufis, who handed down the order, said the Department of Homeland Security (DHS) must “post a public notice, within 3 calendar days of this Order . . . that it is accepting first-time requests for consideration of deferred action under DACA” because the department’s ostensible leader tried to limit the DACA program without having the authority to do so.
The ruling is the latest blow in the Trump administration’s attempts to end the program. In 2017, Trump’s DHS issued a memo that sought to wind down the DACA program, but the Supreme Court ruled last June that DHS’s initial attempts to end it were void because the department did not adequately explain why it was doing so.
Rather than fully reinstating DACA following the Supreme Court’s order, however, DHS issued a new memo in July signed by Undersecretary of Homeland Security for Strategy, Policy, and Plans Chad Wolf — and the lawfulness of this July memo was the central issue in Batalla Vidal. “I have concluded that the DACA policy, at a minimum, presents serious policy concerns that may warrant its full rescission,” Wolf wrote in that memo.
The memo directs “DHS personnel to take all appropriate actions to reject all pending and future initial requests for DACA,” and it provides that current DACA beneficiaries may only receive one-year renewals of their DACA status, rather than the two year extensions they would have received prior to this memo.
Undersecretary Wolf, moreover, purported to be far more than a mere undersecretary in his memorandum. In November of 2019, President Trump named Wolf acting Secretary of Homeland Security, and Wolf signed his July memo as “Acting Secretary.” This distinction matters because as undersecretary, Wolf lacks the power to make changes to DACA, but the Secretary of Homeland Security does have the authority to make such changes.
Judge Garaufis ruled in mid-November that Wolf “was not lawfully serving as Acting Secretary of Homeland Security under the Homeland Security Act (‘HSA’) when he issued the July 28, 2020 memorandum,” thereby cutting the legs out from under Wolf’s attempt to water down the DACA program. If Wolf is not the acting secretary, then his July memo is void.
The order Garaufis handed down on Friday lays out some of the consequences of the judge’s mid-November decision. “Because Mr. Wolf was without lawful authority to serve as Acting Secretary of OHS, the Wolf Memorandum is VACATED,” Garaufis wrote in his most recent order.
So the good news for DACA-eligible immigrants is that, barring a decision from a higher court blocking Garaufis’s most recent order, those immigrants will soon be able to obtain DACA status. And even if the order is blocked, President-elect Joe Biden has also pledged to fully reinstate DACA once he takes office on January 20.
Nevertheless, the future of DACA remains uncertain. For one thing, the Supreme Court’s June decision blocking the Trump administration’s initial attempts to end the program was a 5-4 decision, with the late Justice Ruth Bader Ginsburg in the majority. Since then, Trump has replaced Ginsburg with the far more conservative Justice Amy Coney Barrett. And even before Barrett arrived at the Supreme Court, several members of the Court had signaled that they thought DACA is illegal.
So there’s a reasonable likelihood that the Court’s 6-3 Republican majority will strike down the DACA program even as Biden tries to preserve it.
The logic of Garaufis’s November opinion — that presidents have only limited authority to make acting appointments — could also come back to bite Biden, especially if Republicans control the Senate and, with it, the power to block Biden’s nominees.
Chad Wolf is not the acting Secretary of Homeland Security
The core issue in the Batalla Vidal case turns on whether Wolf was lawfully appointed acting secretary, and therefore is empowered to make changes to the DACA program.
Garaufis’s opinion holding that Wolf was not lawfully appointed is fairly straightforward. The Homeland Security Act provides that, if DHS’s top job becomes vacant, the deputy secretary shall act as secretary. If both jobs are vacant, then “the Under Secretary for Management shall serve as the Acting Secretary if by reason of absence, disability, or vacancy in office, neither the Secretary nor Deputy Secretary is available to exercise the duties of the Office of the Secretary.” A sitting secretary, moreover, “may designate such other officers of the Department in further order of succession to serve as Acting Secretary.”
Currently, DHS’s top ranks are a bit a of ghost town. All three of the top jobs are vacant. Kirstjen Nielsen, the last person to serve as a Senate-confirmed Secretary of Homeland Security, resigned in April of 2019. Before she left, however, she did lay out the order of succession that should apply if the top three jobs at DHS become vacant.
If all top three jobs were vacant, Nielsen determined, then the administrator of the Federal Emergency Management Agency should become secretary — but this job has been vacant since the spring of 2019. Next in line would the director of the Cybersecurity and Infrastructure Agency — a job that, until recently, was filled by Christopher Krebs.
Trump fired Krebs in mid-November after Krebs refuted false claims by Trump and some of Trump’s allies that Biden somehow stole the 2020 election. But Krebs still was in his job as head of the Cybersecurity and Infrastructure Agency in July, when Wolf handed down his DACA memo. That means that Krebs, not Wolf, should have been the acting secretary in July.
It’s worth noting that, even with Krebs out of the picture, Wolf still is not next in line to be acting secretary. After Krebs is the undersecretary for science and technology, but this position is vacant and the job is currently being done by a “Senior Official Performing the Duties of the Under Secretary for Science and Technology.” The next person in line after that is the undersecretary for intelligence and analysis, but that position is vacant as well, and the relevant office is held by an acting official. Eighth in line is the commissioner of US Customs and Border Protection, but that position is also vacant and there, too, the office is led by an acting official.
Ninth in line is the administrator of the Transportation Security Administration. The TSA actually does have a Senate-confirmed leader — David Pekoske was confirmed to lead the TSA in 2017 — and he still holds that office. So it would appear that Pekoske, not Wolf, should currently be serving as acting secretary of DHS.
Judge Garaufis’s order is bad news for Biden if Republicans try to sabotage his administration
As this litany of vacant offices and acting officers suggests, the courts have thus-far been fairly tolerant of President Trump’s attempts to bypass the Senate and fill top jobs with acting officials. But Judge Garaufis’s order suggests that that tolerance may be coming to an end just as Biden is preparing to take office.
We do not yet know who will control the Senate at the beginning of the Biden administration. Currently, Republicans hold a 50-48 seat majority in the incoming Senate, with two seats to be determined in a January 5 Georgia runoff election. If Democrats win both of those seats, Vice President-elect Kamala Harris’s tiebreaking vote will give them a narrow majority in the Senate.
But if Republicans prevail in either Georgia race, then Senate Majority Leader Mitch McConnell (R-KY) will continue to lead the Senate, and Republicans will have the power to block any Biden nominee to any Senate-confirmed job.
Biden, meanwhile, may find himself unable to staff his administration if Republicans choose to sabotage his presidency. While the Department of Homeland Security has a rigid order of succession for its top job, most agencies are governed by the Federal Vacancies Reform Act (FVRA) when a Senate-confirmed position becomes vacant.
Under the FVRA, the president may temporarily fill a vacant, Senate-confirmed job with an acting appointee. But the president cannot fill the job with just anyone — typically the acting appointee must either being currently serving in a Senate-confirmed job, or they must be currently serving as a senior civil servant.
Thus, if a vacancy arises in the middle of a presidency, that’s typically no big deal. After the first year of a new presidency, the president will normally have appointed hundreds of individuals to Senate-confirmed jobs. So that gives the president a deep bench of officials to slide into acting roles as they are needed.
But, at the beginning of Biden’s presidency, he won’t be able to rely on existing Senate-confirmed officials to serve as acting secretaries if the Senate refuses to confirm his nominees. With rare exceptions, the only people in Senate-confirmed jobs when Biden takes office will be Trump appointees.
Biden could potentially fill the vacant jobs with civil servants — that is, with senior career officials in the relevant agencies — but that could prevent Biden from naming a cabinet that shares his political and policy vision.
The FVRA, moreover, imposes rigid limits on just how long an individual may serve in an acting role. Under many circumstances, the tenure of an acting official is limited to just 210 days after a vacancy arises. So even though Biden could fill many jobs temporarily with civil servants, many of those acting appointments will expire just seven months into his presidency.
As mentioned above, the courts haven’t exactly been rigorous in enforcing these restrictions under President Trump, but they now seem likely to take a new interest in enforcing laws like the FVRA once Biden takes office. A 6-3 Republican Supreme Court is unlikely to bend the law in order to help a Democratic president — and really, the law is quite clear that Biden does not have a limitless power to make acting appointments.
A tremendous amount, in other words, is potentially at stake in the Georgia Senate runoffs. Those races could determine whether the Biden administration is able to perform many of the most basic functions of government — starting with actually getting people into top jobs within the administration.
Biden and Congress will have until January 31, 2021 to decide how to help over 40 million student loan borrowers.
Education Secretary Betsy DeVos has extended the pause on federal student loan payments due to the coronavirus pandemic through the end of January.
The freeze on monthly payments and the accrual of interest on loans had been set to expire at the end of December, but Democrats and consumer advocacy groups had called for an extension, arguing that repayments should not begin again amid the presidential transition and that they should stay suspended due to uncertainty over when another coronavirus relief bill may be passed by Congress.
“The coronavirus pandemic has presented challenges for many students and borrowers, and this temporary pause in payments will help those who have been impacted,” DeVos said in a statement Friday. “The added time also allows Congress to do its job and determine what measures it believes are necessary and appropriate. The Congress, not the executive branch, is in charge of student loan policy.”
Student loan relief — which began in March through the CARES Act, and was then extended by the Trump administration — has provided relief to over 40 million Americans as the coronavirus pandemic has wreaked havoc on the economy, and put a strain on household incomes across the nation. And the economic picture appears unlikely to brighten soon — more than 5.8 million people are unemployed, and a new federal jobs report found job creation slowing.
The student loan freeze has modestly improved credit scores of student loan borrowers and helped borrowers in default avoid penalties for non-payment such as wage garnishment, according to the Urban Institute.
While DeVos called on Congress to take action on relief, both the executive and legislative branches of government have options available for extending relief.
As Politico reports, the coronavirus relief bill passed by House Democrats in May would keep the freeze in place until September 30, 2021 unless the unemployment rate improves. And a bipartisan bill unveiled in the Senate this week potentially offers some kind of relief on payments through March.
When President-elect Joe Biden takes office, he will have the option to extend the repayment moratorium through executive action just as the Trump administration did. But Democratic leaders, progressives, and many consumer advocacy groups are pushing for much more sweeping action on loan relief during Biden’s tenure: The outright cancellation of federal student loans.
Student loan cancelation is a hot policy debate on the left
Some progressives like Sen. Elizabeth Warren (D-MA) have argued that the Higher Education Act gives the education secretary the “authority to begin to compromise and modify federal student loans,” meaning that the president has the legal power to cancel student loan debt unilaterally.
As Vox’s Dylan Matthews has reported, Senate Minority Leader Chuck Schumer and Warren have called on the Biden administration to use executive authority to forgive the first $50,000 in federal student debt for every borrower with federal student loans. (Federal student loans make up over 92 percent of outstanding student loan balances, as opposed to privately issued loans.)
Biden has preferred more modest cancellation measures. He has expressed support for far more limited student loan relief — forgiving $10,000 per borrower — but sources involved in his transition-planning discussions told the New York Times that he prefers any cancellation measure to by authorized through congressional legislation, not executive action.
If Democrats succeed in taking control of the Senate after Georgia’s two runoff elections — and therefore hold both chambers of Congress — there may be some more serious discussion of doing just that. But if Democrats fail to take control of the Senate in January’s runoffs, pressure on Biden to take executive action to forgive loans may intensify.
Denmark’s significant move makes EU climate change targets actionable.
Denmark has just taken a significant step to lead the world on addressing climate change. The country announced that it will phase out all oil and gas exploration contracts in the North Sea by 2050. It’s the first major oil-producing country to take such a big step.
Following a December 3 vote, the Danish parliament has issued a near-total ban on companies receiving new licenses to hunt for and extract oil. The agreement will also cancel an eighth round of licensing that was set to occur. Licenses that were issued before the vote will be honored until 2050.
“We’re the European Union’s biggest oil producer and this decision will therefore resonate around the world,” Danish climate minister Dan Jorgensen said on Thursday.
The move to end oil and gas contracts by 2050 is not going to be cheap as it’s estimated to cost Denmark $2.1 billion, but the country appears ready to foot the bill. “It’s a tough decision, it’s an expensive decision, but it’s the right decision,” Jorgensen told the Washington Post.
Denmark has been extracting oil and gas from the North Sea since 1972. Tax revenue from oil and gas production has greatly benefited its economy, helping to build the Danish welfare state that takes care of its citizens across their lifetimes.
But ending oil and gas extraction and exploration, experts say, is the only way Denmark can meet the European Union’s climate pledge. In October, the European Union voted to cut greenhouse gas emissions by 60 percent from 1990s levels by 2030.
The decision, which passed overwhelmingly, increased the bloc’s pledge to the 2016 Paris Agreement, signaling Europe’s serious commitment to ending the climate emergency.
Denmark’s plans put the country in line with regional targets.
“It’s taking a measure that will probably ensure that Denmark can meet this goal within the EU of reducing emissions to the point where they can pursue carbon neutrality by 2050,” Wil Burns, professor and co-director of the Institute for Carbon Removal Law & Policy at American University, told me. “And this is the only way they could effectuate that.”
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Ole Jensen/Getty Images
The vote also came due to increased pressure at home. Copenhagen, the Danish capital city, announced plans in late 2019 to become the first carbon-neutral capital in the world, achieving net-zero carbon emissions by 2025.
And as Reuters reported in June, the Danish Council on Climate Change, an independent body that advises Denmark’s government, called for an end to oil and gas activities to salvage the credibility of Denmark as a leader in the fight against climate change.
“A Danish halt for further exploration in the North Sea could send a strong signal in international climate politics and may even encourage other countries to follow suit,” the council said at the time.
The international environmental activist organization Greenpeace expressed their support for the decision on Twitter, heralding the move as a “landmark decision.”
Historic WIN for climate & people power! In landmark decision, oil producer Denmark ends future licensing rounds for oil and gas exploration permits in the North Sea and sets existing production to expire no later than 2050. Now, more countries need to end oil! pic.twitter.com/NyUg4CtsCb
— Greenpeace (@Greenpeace) December 4, 2020