ISABELLA LLANO—On September 5, 2017, United States Attorney General Jeff Sessions announced the end of the Deferred Action for Childhood Arrivals (DACA) program, leaving roughly 800,000 DACA recipients in a state of uncertainty. In his announcement, Sessions claimed that the creation of DACA was an “unconstitutional exercise of authority by the Executive Branch.” As a result of the announcement, a group of 16 states filed a lawsuit in the Eastern District of New York and a group of 4 states filed a lawsuit in the Northern District of California to stop the planned repeal of DACA.
The rescission of DACA – is it legal?
The California suit claims that the Department of Homeland Security (DHS) violated the Due Process Clause of the Fifth Amendment because the change in policy means the U.S. Government could use information from DACA applications for purposes of immigration enforcement, which is “fundamentally unfair.” The lawsuit claims that Trump administration violated the Administrative Procedure Act (APA) because it rescinded DACA without a proper legal basis and without the formal notice-and-comment process. The lawsuit also claims that the Trump administration did not consider the economic repercussions of the repeal on small businesses as required by the Regulatory Flexibility Act. Furthermore, the California suit asserts that DACA applicants relied on DHS’s assurances that the information provided in DACA applications would not be used against them in future immigration proceedings and DHS is equitably estopped from using information for immigration enforcement purposes. Finally, the lawsuit claims that the rescission of DACA violates the Equal Protection Clause because the repeal deprives DACA recipients of substantial interests in pursuing an education and protecting their livelihood.
The 58-page complaint in the 16-state New York suit similarly alleges violations of the Equal Protection and Due Process Clauses, the APA, and the Regulatory Flexibility Act. However, the cause of action alleging violation of the Equal Protection Clause differs from that of the California lawsuit. The New York suit claims that “[t]he DHS Memorandum—together with the President’s numerous statements about his intentions towards Mexicans, who comprise the largest population of DACA grantees—target individuals for discriminatory treatment based on their national origin, without lawful justification,” and as a result violates the equal protection guarantee of the Fifth Amendment.
What happens now?
Although the lawsuits are still in their initial stages, legal experts say that the lawyers challenging the government may face a difficult road ahead. Ironically, the strongest legal argument for blocking the repeal of DACA is the same argument that blocked the Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) program: the violation of the APA, which lays out a complex process that requires advance notice and comment to the public before federal agencies can issue, amend, or repeal “substantive rules.”
When DACA was enacted, it did not create a new substantive right for Dreamers but instead allowed the executive to use its prosecutorial discretion on a case-by-case basis. Prosecutorial discretion does not have the notice-and-comment requirement under the APA. In his article posted on the Take Care blog, Daniel Hemel, a University of Chicago law professor, cited Electronic Privacy Information Center v. U.S. Department of Homeland Security as guidance for what constitutes a “substantive” rule. In that case, an agency action is a substantive rule that must go through notice and comment if it (1) “alter[s] the rights or interests of parties,” (2) makes a “substantive change” to the statutory or regulatory regime, and (3) has a “present binding effect.” Under that standard, in rescinding DACA, the Trump administration created a new substantive rule and notice and comment are therefore required under the APA. Even if the APA’s notice-and-comment requirement does not hold up in court, Dreamers can still sue under APA grounds that the rescission of DACA is “arbitrary and capricious.”
In the end, even if courts rule that the APA’s notice-and-comment requirement is not met, or that the rescission of DACA is “arbitrary and capricious,” it would most likely not be enough to save DACA and would simply buy time for DACA recipients. Ultimately, it will likely be up to Congress to enact legislation to preserve DACA and protect Dreamers.