By Adam Cox, Marty Lederman and Cristina Rodriguez
One calendar month ago, on September 5, the Acting Secretary of Homeland Security, Elaine Duke, tweeted that if Congress does not “legalize DACA” past times March, he “will revisit this issue.” As nosotros explicate below, however, his Attorney General together with DHS possess got announced that at that spot is no legal authorization for DACA, a conclusion that complicates whatever “revisiting” of the issue, to order the to the lowest degree (see Part V below).
In the meantime, several sets of plaintiffs possess got filed lawsuits challenging the legality of DHS’s DACA rescission. Most notably, New York together with 15 other states, together with the District of Columbia, filed suit inwards the Eastern District of New York; together with the Regents of the University of California filed suit inwards the Northern District of California, together amongst quondam DHS Secretary Napolitano, who is straightaway President of the University of California. More recently, similar suits possess got been filed past times the States of California, Maine, Maryland together with Minnesota; this post (which links to the others)—the Immigration Reform together with Control Act of 1986 (IRCA), 8 U.S.C. § 1324a(a), mostly makes it unlawful to hire or employ an “unauthorized alien.” That statute inwards turn defines “unauthorized alien” to hateful an alien who is neither lawfully admitted for permanent residence nor “authorized to live . . . employed by this chapter or by the Attorney General.” Id. § 1324a(h)(3). This provision of IRCA hence expressly provides that the Attorney General—now the Secretary of DHS, past times virtue of a afterwards statutory substitution—may “authorize[]” aliens to live eligible for employment, fifty-fifty inwards cases where the statute itself does non straight authorize them to live employed; together with when the Secretary does so, such Secretary-designated aliens are non “unauthorized aliens” who are land of written report to IRCA’s hiring prohibition.
Since Congress enacted IRCA inwards 1986, the Attorney General together with (later) the DHS Secretary possess got designated dozens of types of aliens every bit “authorized to live . . . employed” nether specified conditions—most or all of which are listed together with described in 8 C.F.R. 274a. Most importantly for DACA purposes, inwards 1987 the Reagan Administration promulgated a regulation (see current subsection 274a(c)(14)) providing that whatever “alien who has been granted deferred action, an deed of administrative convenience to the authorities which gives some cases lower priority,” may obtain operate authorization if the soul “establishes an economical necessity for employment.” This dominion survived extensive notice together with comment review during the Reagan direction despite abrupt challenges; Congress has been aware of it for many years; together with for several decades after 1987, no 1 challenged it inwards court. (See the detailed occupation concern human relationship of this regulation inwards Part II of the Argument in might suggest congressional acquiescence, fifty-fifty if the master copy claim of statutory authorization was questionable.
Thus, for the past times 20+ years, individuals amongst “deferred action,” including but non limited to DACA “DREAMers,” possess got been eligible to have Title II Social Security benefits, Medicare benefits, together with Railroad Retirement benefits. In other words, this characteristic of DACA, similar operate authorization, was non an excogitation of the Obama administration, but rather the outcome of pre-existing regulations governing deferred action.[1]
II. Why together with How did the Trump DHS Rescind the DACA Program?
Importantly, Acting Secretary Duke did non offering whatever policy justification for rescinding the Napolitano DACA memo: She did non conclude, for example, that DACA is a waste matter of resources or that the work of DREAMers is harmful to the economy. Nor did she comprehend Attorney General Sessions’ views, stated inwards his press conference on September 5, that DACA has “contributed to a surge of unaccompanied minors on the southern edge that yielded terrible humanitarian consequences” together with “denied jobs to hundreds of thousands of Americans past times allowing those same jobs to become to illegal aliens.” To the contrary, her DHS officials testified to the Senate precisely this week that the DREAMers are a do goodness to the country.
Instead, Acting Secretary Duke justified her activity solely on the the world that Attorney General Sessions had informed her (in a September iv letter) of his conclusion that DACA was not authorized past times law. According to Sessions, Secretary Napolitano’s DACA policy was:
effectuated past times the previous direction through executive action, without proper statutory authority together with amongst no established end-date, after Congress’ repeated rejection of proposed legislation that would possess got accomplished a similar result. Such an open-ended circumvention of immigration laws was an unconstitutional exercise of authorization past times the Executive Branch.[2]
Before discussing the heart together with soul of Sessions’s conclusion virtually statutory authorization (or the lack thereof) together with how it powerfulness inform the implications of the DACA rescission, it is worth pausing to annotation 3 other things virtually this crucial passage from his letter to DHS.
First, Sessions’ claim that Congress has “repeated[ly] reject[ed]” proposed legislation “that would possess got accomplished a similar result” every bit DACA is disingenuous, at best. Sessions presumably is referring to the DREAM Act, which Congress has never “rejected”—indeed, the House approved it inwards 2010, together with it has never come upwards to a total vote inwards the Senate. (A bulk of Senators approved a version of it inwards 2007, but a filibuster prevented a merits vote then, too.)
What’s more, fifty-fifty if Congress had expressly “rejected” the DREAM Act—a meaning misreading of the legislative history, inwards our view—it is deeply misleading to order that the DREAM Act “would possess got accomplished a similar result” every bit DACA. DACA together with the DREAM Act are 2 exclusively different kinds of legal acts. As two of us possess got emphasized, the quondam (DACA) reflects the exercise of contingent, discretionary executive powers every bit delegated or ratified past times existing statutes, whereas the latter would permanently alter the legal status of the population it would reach. The legislation would become much further than DACA—it would offering DREAMers the legal right to stay inwards the country, together with a path to lawful permanent residence together with so citizenship. DACA, past times contrast, simply defers their removal together with triggers eligibility nether the regulations described above. As far every bit nosotros know, Congress has never fifty-fifty considered, allow lonely rejected, whatever legislation that would do no to a greater extent than than codify DACA.
Second, Sessions’s assertion that DACA is an “unconstitutional exercise of authorization past times the Executive Branch” is a mere rhetorical (and tendentious) flourish, without substance. As Marty has explained inwards several posts (see, e.g., the offset 3 points of this post, together with this post), the Obama Administration did non assert the authorization to implement DACA or DAPA “unilaterally,” i.e., without statutory authorization (let lonely inwards defiance of the law). And every bit Adam together with Cristina have argued, such a determination virtually the particular circumstances nether which to enforce the police clitoris is the exercise of a mutual executive component that all Attorneys General, Sessions included, possess got exercised inwards numerous contexts. The gist of the dispute here, especially concerning operate authorization, has been whether the existing immigration laws authorize DHS’s actions (as Secretary Napolitano concluded), or do non authorize them (as AG Sessions apparently has concluded). That is an ordinary, every-day dispute virtually statutory interpretation.
Third, inwards terminal that DACA is unlawful, AG Sessions upends or calls into inquiry elaborate, pre-existing DOJ legal positions. The official seat of the United States, every bit expressed past times DOJ inwards many briefs—including a twosome filed past times the Solicitor General inwards the Supreme Court (see this post, the government’s 1996 interpretation of PRWORA to include “deferred action” aliens every bit eligible for Social Security benefits (and, later, Medicare benefits) is for sure opened upwards to inquiry (or it was inwards 1996, anyway). The answer to Question six of DHS’s novel testified inwards a House hearing inwards June that “every immigrant inwards the province without papers . . . should live uncomfortable. You should aspect over your shoulder. And you lot require to live worried.” Living nether the shadow of this increased prospect of removal apparently volition possess got a profound send on on the ways inwards which many DREAMers demeanour their lives, fifty-fifty if most of them stay inwards the the States for many years to come.
It’s also possible the gamble of removal nether the novel Trump policy may live heightened silent further, if ICE together with USCIS (the DHS constituent that oversaw DACA) start cooperating inwards a way they possess got non done to date. Under the Napolitano policy, DREAMers themselves were required to convey data virtually their status together with whereabouts to USCIS when they applied for deferred action. If ICE were to obtain that information, it powerfulness work it every bit a footing for identifying targets for removal or to demonstrate that the individuals are non lawfully inwards the the States together with hence tin live removed.
Under the Obama administration, this gamble was remote. Before September 5, a DHS FAQ on DACA informed recipients (Q19) that:
Information provided inwards [a DACA] asking is protected from disclosure to ICE together with CBP for the work of immigration enforcement proceedings unless the requestor meets the criteria for the issuance of a Notice To Appear or a referral to ICE nether the criteria develop forth inwards USCIS’ Notice to Appear guidance (www.uscis.gov/NTA). Individuals whose cases are deferred pursuant to DACA volition non live referred to ICE.
This was non quite a legal commitment that DHS would never work the deferred-action data it obtained from DACA applicants for removal purposes: The QFR specifically stated that “[t]his policy, which may live modified, superseded, or rescinded at whatever fourth dimension without notice, is non intended to, does not, together with may non live relied upon to create whatever right or benefit, substantive or procedural, enforceable past times police clitoris past times whatever political party inwards whatever administrative, civil, or criminal matter.” Nevertheless, every bit Secretary Jeh Johnson explained inwards a Dec 2016 letter to Representative Judy Chu, the agency’s longstanding practise has been not to work such data “submitted past times people seeking deferred activity . . . for immigration enforcement purposes except where it is independently determined that a instance involves a national security or world security threat, criminal activity, fraud, or limited other circumstances where issuance of a notice to seem is required past times law.”
Accordingly, until straightaway it has for sure been reasonable for DACA applicants to submit potentially compromising data to DHS without concern that it would live shared amongst ICE together with used against them—an expectation without which many of them probable would non possess got applied for deferred activity inwards the offset instance.
The Trump DHS, however, has straightaway amended the assurance inwards its FAQ tweeted that if Congress does not “legalize DACA” past times March, he “will revisit this issue.” But, again, the Attorney General has straightaway announced that, inwards his view, at that spot is no legal authorization for such a plan (especially for its attendant operate authorizations). Of course, it’s ever possible the President doesn’t share, assist about, or empathize his officials’ views virtually what the police clitoris allows—and it’s fifty-fifty possible that he powerfulness overrule his Attorney General’s legal conclusions. Unless together with until the Department of Justice does yet some other about-face, however, together with revives its commitment to the legal arguments it tendered until a few weeks ago, it’s difficult to consider how DHS could “revisit” the number of whether to implement DACA if Congress fails to better the law.
VI. What Are the Prospects for the Litigation Challenging the DACA Rescission?
The novel lawsuits challenging the rescission of DACA nurture several different claims. For example, they allege that the rescission violates the equal protection constituent of the Due Process Clause of the Fifth Amendment to the Constitution because it was motivated past times anti-Mexican animus. They also allege that the Administrative Procedure Act required the rescission to live effected through notice-and-comment rulemaking. In addition, they allege that, if together with when ICE uses data from DACA applications to justify removals, it volition violate the due procedure rights of the removed DREAMers.
For diverse reasons, nosotros possess got doubts virtually whether these legal theories volition live fruitful. (See William Funk’s summary for a concise overview of some of the suits together with the legal obstacles to some of the claims.) Some of the suits, however, include some other theory that nosotros shout out back powerfulness live to a greater extent than successful. As the complaint inwards the Cal Regents adapt puts it (paragraph 56): “The Rescission together with actions taken past times Defendants to rescind DACA are arbitrary together with capricious, an abuse of discretion, together with non inwards accordance amongst police clitoris because, amid other things, they are based on the legally wrong premise that DACA is unlawful.” See also paragraph 283 of the New York complaint together with paragraph 176 of the Garcia complaint.
As nosotros explained above, DHS has justified the rescission of DACA only on the the world that the AG has concluded at that spot is no legal authorization for it. If the courts uncovering that Sessions is correct—that there’s no authorization for DACA—then presumably the challenges to the rescission volition fail. If, however, the courts uncovering that Sessions is wrong every bit a legal matter—that DOJ’s previous persuasion was right that deferred activity together with the attendant operate authorization are lawful—then that volition eliminate the sole predicate offered past times DHS for its rescission. There is some precedent suggesting that such a judicial conclusion would homecoming DHS’s determination arbitrary and/or capricious, inwards violation of the APA. See, e.g., Safe Air For Everyone v. EPA, 488 F.3d 1088, 1101 (9th Cir. 2007) (“We possess got held EPA’s conclusion that the preexisting SIP did non ban land burning legally erroneous. Because that flawed premise is telephone exchange to EPA’s determination that it did non contravene [the Clean Air Act], EPA’s outcome on those statutory interpretation questions is “arbitrary, capricious, or otherwise non inwards accordance amongst law” for the purposes of our review.”). It powerfulness at offset seem incongruous to deem “arbitrary” a determination based upon a good-faith agreement of the police clitoris that the courts ultimately do non share. But if the courts were to spend upwards Sessions’s legal views, so the DACA rescission every bit currently presented would lack whatever stated DHS rationale, together with its continuation would live arbitrary.[5]
Note, however, that a proclamation past times the courts that the rescission was arbitrary and/or capricious would not mean that DHS could non rescind DACA. Neither the Constitution nor the INA requires a plan such every bit DACA. It has been a discretionary policy based on judgments virtually how to allocate scarce enforcement resources together with how to exercise the Secretary’s work-authorization power. Therefore DHS hence could, for example, rescind DACA based upon the Secretary’s persuasion that it is an unwise or counterproductive policy. As noted above, however, DHS officials possess got testified that the DREAMers are a do goodness to the nation. And the President has publicly cajoled Congress to legislate protections for DREAMers. Accordingly, if the courts were to spend upwards Sessions’ reading of the statute, together with remand the affair to DHS for farther consideration, DHS would possess got no alternative but to forthrightly assess the dramatic together with harmful consequences of DACA rescission on the merits. In that event, Acting Secretary Duke could rescind DACA only if she were to alter her electrical current persuasion together with conclude that the policy is substantively harmful or unwise; she could no longer cover behind what nosotros believe to live dubious constitutional together with statutory arguments virtually the range of the agency’s authority. “The police clitoris made us do it” would no longer suffice.
[1] Perhaps the biggest stumbling block the authorities faced when defending the DAPA plan inwards the Texas litigation, including during oral arguments at the Supreme Court, was that the DHS DAPA memo stated that recipients “for a specified menstruum of fourth dimension [were] permitted to live lawfully acquaint inwards the United States.” This linguistic communication probable reflected the administration’s intent to convey DAPA recipients, similar all others amongst “deferred action,” nether the damage of the 1996 Reno regulation for purposes of Social Security benefits. The outcome of that statement, however, was to arrive possible for opponents of DAPA to (inaccurately) characterize the direction every bit attempting to give unauthorized immigrants the legal right to stay inwards the United States—something only Congress tin do.
[2] Sessions also noted that the State plaintiffs inwards the Texas litigation challenging DAPA had threatened to better their lawsuit to include a challenge to DACA, every bit well, together with that because DACA allegedly “has the same legal together with constitutional defects that the courts recognized every bit to DAPA, it is probable that potentially imminent litigation would yield similar results amongst honor to DACA.” Of course, Sessions was right that that litigation would inwards all likelihood non possess got ended good for the federal government, given that the Attorney General himself was straightaway taking sides amongst Texas together with arguing that DACA is unauthorized together with fifty-fifty unconstitutional.
[3] Current DACA recipients also volition lose 1 other wages that some of them possess got enjoyed. Under the statute together with its regulations, the DHS Secretary “may” grant advance “parole” to immigrants “for urgent humanitarian reasons or meaning world benefit”—which is, inwards effect, permission for a non-citizen, who does non possess got a valid immigrant visa, to re-enter the the States after traveling abroad. This discretionary do goodness is not tied to “deferred action” status together with thus—unlike operate authorization together with Social Security benefits—does non depend upon a conferral of such status. Even so, every bit the Solicitor General explained to the Court inwards the Texas case, “DHS has been permissive inwards authorizing move past times DACA recipients via advance parole.” The Answer to Question eleven of DHS’s novel in an Apr 2016 post, the Secretary together with the Attorney General possess got for decades provided operate authorization to many categories of aliens who Congress has non affirmatively identified every bit eligible to live hired. See, e.g., 8 C.F.R. §§ 274a.12(a)(6), (9), (11), (c)(3), (5)-(7), (9)-(11), (14), (16)- (17), (21), together with (25). As Solicitor General Verrilli stressed inwards the Texas oral argument, reversing this long-held legal persuasion of the INA would hateful that many millions of aliens who possess got been authorized to operate over the past times xxx years pursuant to these provisions would no longer live able to operate lawfully. The As Marty explained, however, IRCA itself does non clitoris or suggest such distinctions amongst honor to the Secretary’s work-authorization authority. And, inwards whatever event, it is non obvious whether DACA operate authorizations tin live persuasively distinguished, on that or other grounds, from several other historical categories of operate authorization that possess got reached beyond what the statute expressly sanctions.
[5] In a recent missive of the alphabet to the courtroom inwards 1 of the pending challenges to the DACA rescission, DOJ wrote that "[e]ven if the traditional arbitrary-and-capricious criterion was applicable, . . . the Secretary’s determination was exclusively rational, given (among other things) the substantial litigation gamble that Defendants faced inwards the Southern District of Texas if the policy continued." That “litigation risk,” however, cannot fairly live seen every bit a distinct together with independent ground for DHS’s DACA rescission—particularly not, every bit here, where the “risk” is inwards large mensurate a component of the fact that the U.S. Attorney General is straightaway siding amongst the plaintiffs together with agreeing that DACA lacks whatever statutory footing (see footnote 2, above). If DOJ were willing to defend the legality of DACA, inwards accord amongst the longstanding views of the United States—and the views of the operate authorization statute that possess got been codified inwards regulations since the Reagan Administration—there’s no ground to shout out back that DHS would rescind the policy, anyway, but because of the speculative gamble that courts powerfulness ultimately spend upwards the government’s legal arguments.
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