Today the attorneys general of fifteen states (including Washington) and the District of Columbia jointly sued the Trump Administration to stop Trump from rescinding the DACA program, as announced yesterday.
Let’s look at their legal arguments.
This needs to be said upfront: rescinding DACA is a horrible thing. It’s cruel and evil. It’s economic suicide. It’s ignorant. It’s racist. It’s petty. It’s terrible in just about every way. It’s bad, mean-spirited, shortsighted policy.
Almost none of that matters in court, other than in the most cursory ways. The only thing that matters is whether the Trump administration’s actions are legal. The courts will usually do their best to stay out of the policy debate.
The DACA fight isn’t about the constitutionality of a law or its implementation. DACA isn’t a law. It’s an exercise of an executive branch power: prosecutorial discretion. The Obama administration carefully designed it to stay well within its powers. Opponents of DACA argue that it failed to do that and infringes on the legislative branch (and is thus unconstitutional) — and that will surely figure into the government’s defense to the lawsuit. But that’s a discussion for another day.
By definition, if the executive branch has the power to unilaterally put DACA in place, it has the power to unilaterally rescind it as well. That means the state AG’s have their work cut out for them: they have to prove that the Trump administration did something wrong in how it exercised its authority. That could take a number of forms. As the fight over Trump’s travel ban has demonstrated all too clearly, the government can’t have an unconstitutional intent in otherwise legal actions. The executive branch is also legally required to follow certain “rulemaking” procedures when establishing non-trivial rules, and particularly those that have adverse impact on some constituency.
The state AG’s lawsuit lists five causes of action against the Trump administration in rescinding DACA:
- They accuse the Trump administration of violating the Equal Protection clause of the Constitution in rescinding DACA. They base this on the fact that 78% of DACA recipients are Mexican, Trump has made several disparaging remarks about Mexicans, and one of the ten conservative states that threatened to sue to overturn DACA is Texas, which has been found several times to have acted out of racial animus.
- They accuse the Trump administration of violating the Due Process clause. At issue here is that those who applied for DACA provided substantial amounts of personal information under a promise from the government that the information provided would not be used later for immigration enforcement. The Trump administration has backed away from that commitment.
- They allege that the Trump administration has substantively violated the Administrative Procedures Act by providing “minimal formal guidance” on how it will rescind DACA.
- They also allege procedural violations of the Administrative Procedures Act because the government is required to hold a public rulemaking process whenever it produces or promulgates new rules that “impacts substantive rights.”
- They accuse the Trump administration of violating the Regulatory Flexibility Act, which requires it to analyze the impact its rules will have on “small entities” and to publish initial and final versions of that analysis before enacting the rules. In this case, they argue that colleges and universities, as well as small businesses, are all adversely impacted by ending DACA since they will lose employees and students.
The strongest argument is #2: that the administration is breaking its promise to DACA applicants on its use of their personal information. It’s well documented, and it should be straightforward to get an injunction preventing the Trump administration from giving that information to ICE for enforcement purposes.
There’s also a good case to be made for#4 and #5: that the administration didn’t follow the appropriate rulemaking steps. Whether they succeed will depend on two legal questions. The first is whether creating rules and rescinding them are equivalent: does getting rid of a rule require all the same process as it took to put it in place? The law, as passed by Congress, says the rulemaking process is required for “proposing or promulgating” a rule; it says nothing about rescinding one. On the other hand, if a rule benefits some people, removing it certainly would have an adverse effect.
#3, the lack of “formal guidance,” is a tougher sell. Again, it’s rescinding a rule, not creating one. And it’s a subjective standard for what is sufficient formal guidance.
The weakest argument is #1: the violation of the Equal Protection clause. If the Trump administration had immediately revoked DACA status and existing protections for program participants, then there would be a strong case. Instead, they are allowing all existing DACA recipients to run through to expiration, and processing all pending applications. The DACA program has always made clear that acceptance into DACA is not guaranteed, nor is renewal of DACA status. So the state AG’s need to make the case that discontinuing new applications and renewals for the program — which was created entirely under the auspices of prosecutorial discretion — is a Due Process violation. Much like with the Trump travel ban, they will need to show direct evidence that the action was taken out of animus against a specific group of people, and not their stated reason (that DACA is unconstitutional). Trump has made so many contradictory statements about DACA over the last 18 months that this will be a challenge.
And unfortunately, none of the AG’s stronger arguments are likely to result in anything other than a temporary reinstatement of DACA while the Trump administration runs through the proper rulemaking processes.
The AG’s are asking the court to find that rescinding DACA is unlawful, that the Trump administration’s actions in how it has chosen to rescind it are unlawful, and its sharing of the information collected for enforcement purposes is unlawful. That’s a tall order. As horrible as the Trump administration’s actions are, probably the most that the AG’s lawsuit will do is to slow them down and prohibit them from using the data collected.
The big takeaway: Congress had better get its act together and fix this legislatively.