Politics

The Five Most Outrageous Legal Arguments Against DACA Repeal

Judicial experts say court challenge based on flawed premise one president can tie the hands of another

As political documents, the lawsuits challenging President Donald Trump’s decision to end a quasi-amnesty program created by the previous administration are effective at stirring protests.

As legal documents, according to several scholars, they are riddled with dubious claims.

Attorney General Jeff Sessions announced this month that President Barack Obama’s administration exceeded its authority in creating the Deferred Action for Childhood Arrivals (DACA) program, and Trump vowed to end it after a six-month transition period. The decision prompted not one, not two, but three separate federal lawsuits.

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New York and 16 other states sued in federal court in Brooklyn. Not content to simply join that litigation, California, Maine, Maryland and Minnesota filed their own suit in San Francisco. And Janet Napolitano — who created DACA in 2012 as secretary of the Department of Homeland Security and now serves as president of the University of California — filed a third legal challenge on behalf of the school’s board of regents.

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Railing against Trump at news conferences is one thing. Making legal arguments in front of a judge is another. The broad question is whether the executive actions of one president can tie the hands of his successor. Experts contacted by LifeZette said they are unaware of anyone even making that argument in the past, let alone a court’s buying it.

Behind generalities, some of the specific arguments are even more outlandish, according to legal scholars. Here are five of the most outrageous:

Rescinding DACA violates the Administrative Procedure Act because the administration acted without giving notice and accepting comments as part of a formal rule-making process. All three suits make this claim, arguing that violating the process prevented plaintiffs from submitting important information documenting the success of the program.

Ironically, this is one of the claims Texas and other states made in successfully challenging the Obama administration’s sister program, Deferred Action for the Parents of Americans (DAPA), and an expansion of DACA.

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John Eastman, founding director of The Claremont Institute’s Center for Constitutional Jurisprudence, said it is particularly preposterous for Napolitano to raise the issue. By arguing that the Trump administration had no authority to end the program without going through the notice-and-comment process, she implicitly acknowledges that she acted improperly in creating DACA, he said.

“The suit is just priceless … We’ve got to redo our dictionaries and put [Janet Napolitano’s] picture next to the word ‘chutzpah.'”

“The suit is just priceless … We’ve got to redo our dictionaries and put [Napolitano’s] picture next to the word ‘chutzpah,'” he said. “The chutzpah of that litigation is just astounding.”

That’s not to say a liberal judge won’t accept the argument. “It’s bizarre, but it’s entirely possible we might get a lower court, and maybe even the 9th Circuit [Court of Appeals], to rule that way,” Eastman said.

The decision was motivated by Trump’s “animus” toward Mexicans. The New York lawsuit cites Trump’s campaign statements about Mexico and notes that 78 percent of DACA enrollees were born in that country. Because of that, the argument goes, Mexicans who had DACA status are especially vulnerable to deportation once it expires.

“It’s just a replay of the same arguments in the travel ban case,” said attorney Christopher Hajec, referring to the legal challenge of Trump’s executive order temporarily barring travelers from seven — and later six — terrorism-compromised countries.

But Hajec, director of litigation at the Immigration Reform Law Institute, said the president’s motive largely is irrelevant in setting policy within the executive branch — particularly when, as in this case, the change returns policy to simply enforcing the law as passed by Congress. Upholding that rationale would mean some presidents would have greater legal authority than others based on the views they express.

Although some lower courts in the travel ban litigation accepted arguments related to Trump’s campaign statements, the Supreme Court ruled the administration can bar entry of most foreigners covered by the executive order until the high court makes a final decision on the merits.

The decision violates the Equal Protection Clause of the Fifth Amendment. In a nutshell, that clause prohibits the government from treating one group of people differently from another group of similarly situated people.

The New York suit alleges that rescinding DACA would disproportionately and unconstitutionally treat Mexicans differently from other young illegal immigrants. The California suit argues that rescinding DACA is an equal protection violation because it deprives DACA recipients of “fundamental conceptions of justice” by denying them permission to work. All three suits contend Trump’s action violates the due process rights of the DACA enrollees.

“I don’t think they can claim reliance on it, because it was built on sand to begin with.”

Hajec said the premise is flawed since illegal immigrants have no inherent right to work freely in the United States or work freely in the country. Rescinding DACA not only treats its Mexican enrollees the same as recipients from other countries but treats all of them the same as other illegal immigrants, he said.

Josh Blackman, a professor at the South Texas College of Law Houston, said the New York suit is “utterly meritless.” He said the administration has a constitutional duty not to enforce an unconstitutional executive order. The legal rationale for DACA is identical to the DAPA program, which a federal appeals court blocked.

“If DACA’s illegal, then the government has to withdraw it,” he said. “It can’t keep enforcing a law that’s illegal.”

The Trump administration abused its discretion. The Napolitano suit argues that the Department of Homeland Security did not consider “relevant factors” in deciding to revoke DACA and ignored arguments by the previous leadership of the agency and the Office of Legal Counsel as to why the program is lawful.

Eastman, of The Claremont Institute, said the legal opinions of one administration cannot bind the actions of the next. He said the administration can consider whatever factors it wants in deciding whether to maintain or change a policy of its predecessor.

“They’re making utter fools of themselves,” he said.

Hajec said the Obama administration argued that DACA was not a change in immigration law — which it acknowledged could be accomplished only by Congress — but an exercise of prosecutorial discretion.

“Apparently, only the Obama administration has that discretion,” he said, noting that this discretion goes both ways.

Hajec added that even the memorandum creating DACA noted that it did not change the immigration status of its recipients and that the DACA status could be revoked at any time. He ridiculed the argument made by plaintiffs that they and the DACA recipients relied on the program, and that revoking it would cause them harm.

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“There were no guarantees for anything,” he said. “I don’t think they can claim reliance on it, because it was built on sand to begin with.”

The decision was in response to a lawsuit threat of Texas. The New York suit suggests that rescinding DACA was improper because it came in response to a threat of litigation by a state that has discriminated against Hispanics nine times since 2012.

As evidence, the suit cites unrelated litigation over voter identification laws and legislative redistricting plans.

The civil complaint fails to acknowledged that nine other states besides Texas joined the threat to challenge the legality of DACA. More fundamentally, the record of Texas or any other plaintiff is wholly irrelevant to the question of whether DACA itself is legal.

(photo credit, homepage image: ProgressOhio, Flickr; photo credit, article image: Elvert Barnes, Flickr)

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