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Ken Cuccinelli Comments On The Supreme Court's DACA Decision

MARY LOUISE KELLY, HOST:

Well, now let's bring in Ken Cuccinelli. He oversees citizenship and immigration for the Trump administration at the Department of Homeland Security, and he joins me now. Welcome.

KEN CUCCINELLI: Good afternoon.

KELLY: In a few sentences, your reaction to today's decision.

CUCCINELLI: Well, to say disappointed to see the court maintain what is the dissent noted explicitly as an illegal program. Justice Thomas noted you can't - there isn't a process way to save an illegal program, and yet the majority never address the legality of the underlying program. It was encouraging to hear Senators...

KELLY: Sorry to interrupt, but you're taking the position that the court ruling showed that this program was unconstitutional, was illegal in the first place.

CUCCINELLI: No, I said the dissent explicitly said that, and the majority never refuted it. They sidestepped the legality and relied on a process basis to delay, not to defeat, the president's action. Interestingly enough, as other courts have done, they said the president may end this program. And then they promptly did not allow him to do it. The analogy - the recent analogy is to the Census case where they did something very similar. And it sidesteps the substance and the legal decision necessary to be made to provide certainty and to do it. Senator Durbin talked about in your earlier interview, and that is actually to get Congress to step up. President Trump was interacting, as you may recall, with Nancy Pelosi and Chuck Schumer some time ago, and they pulled out of that discussion on the president because a single court provided what they viewed as a delay. And...

KELLY: You're making the point that ultimately - this is a point that probably many people, both supporters and critics of today's ruling might make. But ultimately, this gets solved by Congress and by legislation as a permanent fix. I want to turn you though to what your next step is. There are a lot of people calling on President Trump to rescind DACA again. Would you support that? How should it be done differently this time around if the goal is for you to successfully end the program?

CUCCINELLI: Well, certainly be supportive. And as the president has said, he views this as a delay. And the court has laid out a roadmap over the course of the cases, this was a consolidation of cases, if the president chooses to go down that path. And that is obviously something that is being considered among the other options. It's worth asking whether Congress would actually engage in meaningful discussions with the president or not, something that he has to consider. Last time they started down that path and then pulled out. And that was obviously disappointing to the president, but more disappointing today is the - just the sidestepping by the majority of the open question of whether this program is legal at all.

KELLY: But so what...

CUCCINELLI: The president is charged with enforcing the law, and you don't enforce the law by maintaining something illegal.

KELLY: What do you think the administration's next steps should be?

CUCCINELLI: Well, you know, I came in here to execute on the president's program as a acting deputy secretary of Homeland Security, and so those are discussions we're participating in with the White House, the Department of Justice and other elements of the administration right now. So I don't want to jump before the administration has decided just how to proceed in light of this ruling. I do expect you will see some action out of the administration. The president is considering his options.

KELLY: Right.

CUCCINELLI: When that will be completed, I can't speak to exactly. But he is not a man who sits on his hands. So...

KELLY: Let me...

CUCCINELLI: Yeah.

KELLY: Let me ask about something that is squarely in your portfolio, and this also stems from the majority opinion that Justice Roberts wrote. He wrote the administration failed to weigh how ending the program would affect those who had come to rely on its protections. Nobody wants to lose sight of - these are hundreds of thousands of real people affected by this. If the administration were to make a different case, offer a different reason for ending the program, or move again to rescind DACA, what do you do with the hundreds of thousands of people who are current DACA recipients?

CUCCINELLI: Well, that would certainly depend on how the wind down took place. And these 640,000 or so people have been used by advocates as a pawn. And, you know, I saw President Obama's message on this in his celebration of the outcome today, and it was extraordinarily disingenuous. He said this should be fixed. It should be all these things that he was in a position to do with a 60-person majority in the Senate while he was president. That speaks to the fact that it was used more as a wedge issue than to solve the problem, much like...

KELLY: In the...

CUCCINELLI: ...Criminal justice reform. But President Trump has solved criminal justice reform. He's addressed it...

KELLY: Right.

CUCCINELLI: ...Where others have talked about it. He's willing...

KELLY: In the minute that we have left, Ken Cuccinelli, since you are now in a position of authority here, I wonder what you would say today to those DACA recipients whose lives were thrown into uncertainty when President Trump rescinded DACA in 2017 and who don't know if or when they might be deported? What does - what do you want them to hear from you today?

CUCCINELLI: I would urge them to talk to the people who represent them in Congress where they live and urge them not to disingenuously negotiate a second time on this subject and finish the discussion with the president. It was Congress specifically...

KELLY: Right.

CUCCINELLI: ...Nancy Pelosi and Chuck Schumer and those they represent that backed...

KELLY: OK.

CUCCINELLI: ...Out of that discussion with President Trump.

KELLY: Ken Cuccinelli of the Department of Homeland Security, thanks so much for your time today. We appreciate it.

CUCCINELLI: It's good to be with you. Transcript provided by NPR, Copyright NPR.