the Secretary claims that even though DACA “on its face . . . allow[s] for individualconsiderations,” id., it should nonetheless be rescinded because its programmatic nature somehowmisleads those charged with its implementation into applying it categorically.
As an initial matter, this rationale strikes the Court as specious. It would be one thing fora challenger other than DHS to claim that although DACA calls for case-by-case discretion intheory, its application is categorical in practice. Indeed, this argument was made by the plaintiffsin the Texas litigation. See Texas v. United States, 809 F.3d 134, 171–72 (5th Cir. 2015), aff’d byan equally divided Court, 136 S. Ct. 2271 (2016) (mem). But when made by the agency itself, theargument becomes a non sequitur: if Secretary Nielsen believes that DACA is not beingimplemented as written, she can simply direct her employees to implement it properly. An agencyhead cannot point to her own employees’ misapplication of a program as a reason for its invalidity