The DACA Program Gets
Unexpected Reprieve
This is a fascinating development
that requires a little explanation to fully understand what it means.
What Just Happened?
The District Court’s Order, shared here: U.S. Dist. Court Case - begins with a very
helpful history of Deferred Action that is critical to understanding how the Court
arrived at its Opinion. We recommend
reading the Order, but in a very brief summary, the Court points out that DACA
derives from discretionary powers that have been recognized for decades of
immigration law and implementation. The Order
shows where former Presidents from Eisenhower to Reagan used these
discretionary powers to provide relief from deportation of classes of
immigrants – even in some cases where there was no specific statutory authority
for their actions.
This is important because this
Court Decision is inextricably linked to the litigation filed in Texas by a
number of states seeking to declare President Obama’s executive action allowing
immigration benefits to the parents
of U.S. citizen children – (known similarly as ‘DAPA’) – as unconstitutional. In that case, the Texas Court enjoined the
DAPA program from going into effect – along with some additional tweaks to the
DACA program.
But – and this is key – the Texas litigation did not address the constitutionality
of the original DACA program instituted by the Obama administration in 2012.
Although the District Court in
California provides an insightful discussion of why the original DACA program
might be well within the authority of the President of the United States to
implement, the point is that no Court had
ever ruled that the original DACA program was unconstitutional.
The criticism that President Obama
acted outside of his executive authority is frequently a ‘talking point’ used
by those who object to the DACA program, but it is no more than a personal
opinion. It has never been an Opinion
from a court of law. (Remember, the
Texas case only addressed the ‘DAPA’ program and a few minor embellishments to
the DACA program.)
Thus, when in June of 2017, 10 of
the plaintiffs in the Texas case sent a letter to the new U.S. Attorney General
Jeff Sessions demanding that he rescind the DACA program – or else they would
amend the Texas Complaint to include a challenge to the original DACA program –
the new Attorney General happily complied[1]. He then sent a letter to the acting Secretary
of the U.S. Dept. of Homeland Security requesting its rescission, which was
done the next day.
But it was the manner in which
Attorney General Sessions acted that provides the basis for this new Order from
the California District Court.
In his Letter rescinding the
Deferred Action for Childhood Arrivals program, Attorney General Sessions cited
the ‘illegal’ nature of the DACA program as the basis for terminating the
program. He further concluded that DACA
was an ‘unconstitutional exercise of authority by the Executive Branch.’ The problem is, as stated above, this was no
more than an opinion of the Attorney General – not a determination by a Court
of Law – which is the only branch of the U.S. Government that can make such a
determination. As explained by the
California case, whenever an Agency of the Government, (such as the U.S. Dept.
of Justice), acts, it cannot do so if it is ‘arbitrary, capricious, an abuse of
discretion or not in accordance with the law’.
The Administrative Procedures Act
grants U.S. District Courts, (such as the one in California), the authority to
set aside an act of a government agency if it is ‘arbitrary, capricious, an
abuse of discretion or not in accordance with the law’.
The California Court stated: “In sum, the new Administration did not
terminate DACA on policy grounds. It terminated DACA over a point of law, a
pithy conclusion that the agency had exceeded its statutory and constitutional
authority”. And basically, ‘you can’t do
that’; only courts can draw such a conclusion.
The Court also cited tweets from President Trump and other comments to
show that the decision to rescind the DACA program was improperly made, or in
the words of the District Court: the Dept. of Homeland Security terminated DACA
on “a flawed legal premise that the Agency lacked the authority to implement
DACA”.
So what did the court actually
order to be done?
The Court has essentially re-opened
the DACA program to begin accepting applications for DACA renewals. (This does not allow new DACA
applications - the reasoning being that the plaintiffs were affected only by
those who previously had DACA benefits – but not by persons who had never
before applied for DACA.)
And the Court is serious – requiring
USCIS to provide public notice to DACA recipients that they can apply for
renewals, ordering USCIS to keep track of all applications it receives and even
requiring a report to the Court on the first day of each quarter reflecting how
it is processing the DACA renewal applications.
So What’s
Next?
The
U.S. District Court Order is certain to be appealed to the 9th
Circuit Court of Appeals by the Government, probably pretty quickly and asking
that the Court Order be injoined until it can be heard by the U.S. Supreme
Court.
Also
keep in mind that the U.S. District Court’s order is itself only temporary
until a Final Decision on the case can be heard on its merits.
Finally,
one cannot help but think that this Decision would have some impact on any
negotiations in Congress that attempt to provide immigration benefits for ‘Dreamers’
– but it would be impossible to say whether it has a positive or negative
impact on negotiations.
Stay tuned…
[1] As
a matter of explanation – it is the U.S. Department of Justice, (led by the
U.S. Attorney General), that prosecutes the removal (‘deportation’) of
immigrants from the U.S.
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