In a recent article, New York Times reporter Michael D. Shear interviewed Elaine Duke about her role at the Department of Homeland Security and, in particular, her admitted sabotaging the Trump administration’s attempts to end DACA. Although the torpedoing is not necessarily breaking news – the New York Times wrote about it last November – the interview constitutes her first public comments since leaving the administration two years ago.
Her decision to intentionally write a toothless, tepid, and weak justification for rescinding DACA made it easier for the U.S. Supreme Court to rule against the administration last month. It also leads one to wonder why no one in the administration bothered reviewing the memo before it was submitted.
Ms. Duke’s behavior represents much of what is wrong with what has variously been referred to as the “swamp,” or the “deep state” – a bipartisan establishment of well-entrenched D.C. career bureaucrats and insiders with a globalist bent that is either pro-open-borders or simply soft on immigration enforcement. The case of Elaine Duke is yet another instance of such career bureaucrats who believe they have the right – and even the duty – to undermine and override both President Trump and the American people on any policy issue because they arrogantly believe that they know better and fancy themselves morally superior.
According to her archived DHS bio, Ms. Duke “served in the federal government for nearly three decades.” In 2008-2010 she worked for both Presidents George W. Bush and Barack Obama as DHS Under Secretary for Management. In April 2017, she was tapped by President Trump – much to the disappointment of many of his supporters and pro-American immigration reformers – to serve as DHS Deputy Secretary, a role she performed until April 2018. Between July and December of 2017, Ms. Duke served as acting DHS secretary.
It was in that role that, in August 2017, she was asked by the administration to issue a memo rescinding Obama’s executive quasi-amnesty (DACA). According to the New York Times, “Ms. Duke was deeply bothered by the idea that she could be responsible for deporting hundreds of thousands of young people from the country they considered their own, according to several people familiar with her concerns. And she did not want her name on what she saw as anti-immigrant policy rationales (…).”
So, instead or resigning, the Acting DHS Secretary decided to passively-aggressively undermine the administration’s case by including in the memo only former Attorney General Jeff Session’s argument that DACA was illegal (something with which Ms. Duke technically agreed), but omitting any policy justifications (because she did not agree with them or the actual rescinding of DACA).
As a result of Ms. Duke’s half-hearted and toothless justification, the Supreme Court deemed the Trump administration’s decision to end DACA “arbitrary and capricious” in its June ruling.
As the Supreme Court opinion explained: “Acting Secretary Duke’s rescission memorandum failed to consider important aspects of the problem before the agency. Although Duke was bound by the Attorney General’s determination that DACA is illegal (…), deciding how best to address that determination involved important policy choices reserved for DHS. Acting Secretary Duke plainly exercised such discretionary authority in winding down the program, but she did not appreciate the full scope of her discretion [emphasis added].”
That, of course, in an understatement given that the former acting secretary most certainly “appreciated” the “full scope of her discretion,” but merely chose not to exercise it.
Ms. Duke had another option that she chose not to exercise as well. Given her personal, soft-on-immigration beliefs, she could have either resigned, or recused herself and assigned someone else in the department to write the justification. That is surely what most people would have done. Sadly, “swamp/deep state” personages seem to believe that they are above all the rules and formalities that apply to the “commoners.”