Another judge tells Trump administration to reinstate DACA

Today U.S. District Court Judge John Bates issued one more ruling taking the Trump Administration to task for rescinding the DACA program last year — though he gave the government 90 days for a do-over.

The ruling came in two cases that had been joined together: one brought by DACA recipient Maria de la Cruz Perales Sanchez, Princeton University, and Microsoft; and the other by the NAACP, the AFT, and UFCW.

The judge’s ruling is a very complicated 60 pages, that begins with a comprehensive retelling of the legal proceedings around DACA and its sister legislation DAPA since the Obama Administration put it in place; if you’re unaware, it’s worth ten minutes to get caught up (there’s a lot going on, in multiple jurisdictions). As things stand today, there are several injunctions in place that require the government to continue processing DACA renewal applications, though none that require it to accept new DACA applications.

In this case, the government’s litigation strategy was mostly focused on arguing that the judge can’t hear the case at all: because the plaintiffs don’t have standing to sue on at least some of the issues, and because federal immigration law says that it’s a matter of executive branch discretion that is not reviewable by federal courts. On the standing issue, the Sanchez/Princeton/Microsoft case held up well because as a DACA recipient it is indisputable that Sanchez has standing. But the NAACP/AFT/UFCW case had some of its claims dismissed for lack of standing because none of the plaintiffs are directly subject to the DCA program or deportation. Nevertheless, collectively the case remained intact.

The “reviewability” issue is extremely complex, though in essence it comes down to a conflict between the Immigration and Naturalization Act (INA) and the Administrative Procedures Act (APA). The APA lays out the ground rules for how courts review executive branch rulemaking in general, while the INA lays out ICE’s deportation powers and procedures, and grants it discretion on enforcement priorities. The courts have interpreted the INA such that ICE’s individual enforcement decisions are not reviewable, but statements of general enforcement policy are when they are essentially just a legal interpretation. And since that’s what the Trump administration did in its memos from the Attorney General and Director of Homeland Security, the judge found that he can review it.  That takes us to the merits of the case.

The plaintiffs argued that the order to rescind DACA violated the APA’s requirement that certain executive branch rulemaking requires a “notice and comment period,” which the Trump administration skipped. This engendered several pages of back-and-forth on case law and the minutiae of notice and comment periods, but in the end it boiled down to a simple conclusion: since the Obama Administration originally created DACA without a “notice and comment” period, it makes no sense to require one to rescind it — either it’s not required, or DACA is illegal in the first place.  So the government won on that count.

But the plaintiffs also argued that rescinding DACA was “arbitrary and capricious” because the Trump administration didn’t explain its reasoning for rescinding it beyond a terse statement that it violates federal statutes and the Constitution.  Ironically, the judge said that if the government had simply said that its enforcement priorities had shifted and given some rationale for the shift, it probably would have come out clean. But it didn’t, so he concluded that the DACA rescission violates the APA for being arbitrary and capricious.

The judge does a fair amount of hand-wringing on what the appropriate remedy is for this violation, wavering between remanding it back to the government to fix it, or vacating it entirely. In the end, he chose a middle ground: he vacated it, but stayed his own order for 90 days to give the Trump Administration a chance to reissue it with an explanation of its legal theory. If the government is paying attention, they will likely take the judge’s hint and instead describe it as a shift in enforcement priorities; but we’ll see (the Trump Administration is not known for its legal genius). In practical terms, vacating the rescission means that the Trump Administration would need to start accepting new applications again, and not just renewals, but a lot can and will happen in the next 90 days before that happens.

The plaintiffs also argued that rescinding DACA was unconstitutional, because it violated the DACA recipients’ equal protection guarantees and took away their liberty and property interests without due process. The judge deferred ruling on those issues for now, under the principle of “constitutional avoidance,” in case the government drops the matter and doesn’t reissue its order in the next 90 days.

The plaintiffs had one more claim: they asked for an injunction preventing the government from sharing the personal information that DACA recipients provided on their applications with ICE personnel to assist them in immigration enforcement activities. The Obama Administration, when creating DACA, provided assurances the DACA applicants that their information would not be used in that manner. But the judge refused to grant an injunction at this time, noting that the Trump Administration to-date has stated that they don’t intend to change that policy, and so there is no “imminent” danger that the information sharing will actually happen. The judge also noted that another court has already granted the very injunction the plaintiffs sought for a different case, which makes it even less “imminent” for him to act.

In all, there were wins for both sides in today’s ruling. The Trump Administration’s DACA rescission got slammed again, but the judge gave the government a fairly clear path to repair its failures. But again, nearly identical cases are being tried in multiple courts across the country, so it’s almost assured this will eventually end up in front of the Supreme Court before it’s fully resolved.