In a 2017 letter, Attorney General Sessions concluded that DACA suffered from "constitutional defects." Over the past two years, the Department of Justice has steadfastly refused to acknowledge what these "constitutional defects were."
In DHS v. Regents of the University of California, Ilya Shapiro and I submitted an amicus brief on behalf of the Cato Institute and Professor Jeremy Rabkin. We lamented the fact that DOJ has never explained what these "constitutional defects" were, but urged the DOJ to state its position:
The better understanding is that the reference to DACA's "constitutional defects" was framed in terms of the major questions and non-delegation doctrines, as Justice Gorsuch recognized in Gundy.9 But if there is any doubt about this important question, the government should be asked to represent its position about DACA's "constitutional defects."
DOJ finally opined on this question in its reply brief (pp. 20-21):
Respondents contend (N.Y. Br. 31-42) that DHS offered an inadequate explanation for its legal analysis. But the APA requires only that "the agency's path may reasonably be discerned." State Farm, 463 U.S. at 43 (citation omitted). Both memoranda reflect DHS's conclusion that the DACA policy exceeded the agency's "statutory authority." Regents Pet. App. 116a, 123a. That conclusion does not depend on whether DACA prevented DHS officials from exercising any discretion. See pp. 19-20, supra. And neither Secretary "place[d] any significant weight" on Attorney General Sessions' statement that DACA was unconstitutional, FCC v. National Citizens Comm. for Broadcasting, 436 U.S. 775, 804 n.23 (1978)—which, in any event, simply underscored his strongly held view that DACA was based on a statutorily unauthorized exercise of Executive power.
In other words, "the reference to DACA's 'constitutional defects' was framed in terms of the major questions and non-delegation doctrines, as Justice Gorsuch recognized in Gundy."
George Will also discussed our brief in his latest column:We hope that the major question and nondelegation doctrine are considered in oral arguments next week, which I will be attending. …