Late yesterday, a Federal District Court Judge in California issued a ruling putting the Trump Administration’s efforts to end the Deferred Action For Childhood Arrivals (DACA) program on hold:
WASHINGTON — In the middle of an intense political fight about the program that shields from deportation young immigrants who were brought illegally to the United States as children, a federal judge in California issued a nationwide injunction late Tuesday ordering the Trump administration to start the program back up again.
Saying the decision to kill it was improper, Judge William Alsup of Federal District Court in San Francisco wrote that the administration must “maintain the DACA program on a nationwide basis” as the legal challenge to the president’s decision goes forward.
President Barack Obama created the Deferred Action for Childhood Arrivals program, known as DACA, in 2012 to also give young immigrants the ability to work legally in the United States. President Trump moved to end the program in September, saying that Mr. Obama’s actions were unconstitutional and an overreach of executive power.
That decision has set off a fierce debate in Washington as Democrats and Republicans spar about how to provide relief for about 800,000 immigrants who could face deportation when the program ends on March 5. Mr. Trump met with lawmakers on Tuesday afternoon in a remarkable, hourlong televised meeting to begin negotiations.
But critics of the president’s decision to end the policy, including several states and organizations, had already sued the administration, saying that shutting down the program was arbitrary and done without following the proper legal procedures.
One of the lead plaintiffs in the case, Janet Napolitano, is currently the president of the sprawling University of California system of colleges but served as the secretary of homeland security for Mr. Obama in 2012 and was an architect of the DACA program.
In his ruling, Judge Alsup questioned the administration’s contention that the DACA program had not been put into place legally. He asserted that the secretary of the Department of Homeland Security has long had the authority to grant the kind of temporary protections that formed the basis of the program.
Judge Alsup also cited several of Mr. Trump’s Twitter posts that expressed support for the program. He noted that in September, the president wrote: “Does anybody really want to throw out good, educated and accomplished young people who have jobs, some serving in the military? Really!” Such tweets, the judge said, bolstered the idea that keeping the program going was in the public’s interest.
The judge wrote that previous beneficiaries of DACA, known as Dreamers, must be allowed to renew their status in the program, though the government will not be required to accept new applications from immigrants who had not previously submitted one. The judge also said the administration could continue to prevent DACA recipients from returning to the United States if they leave the country.
It is unclear what the legal effect could be from the judge’s ruling, but the Trump administration may be headed for more intense legal wrangling like the kind that happened after the president’s travel bans.
A spokesman for the Justice Department, Devin O’Malley, said that the ruling did not change the department’s stance.
“DACA was implemented unilaterally after Congress declined to extend these benefits to this same group of illegal aliens,” he said. “As such, it was an unlawful circumvention of Congress, and was susceptible to the same legal challenges that effectively ended DACA. The Department of Homeland Security therefore acted within its lawful authority in deciding to wind down DACA in an orderly manner. Promoting and enforcing the rule of law is vital to protecting a nation, its borders, and its citizens.”
Dara Lind comments on the ruling at Vox:
Alsup’s ruling isn’t a decision about whether the Trump administration acted illegally or unconstitutionally to end DACA in September 2017. It’s a preliminary injunction — an order to temporarily stop a government policy, while the courts hash out the question of whether the policy is legal and constitutional. That makes it, by its nature, temporary.
Preliminary injunctions are issued when the judge believes it’s likely that the policy in question will ultimately be struck down in court — and when the cost of allowing the policy to go into effect is large and irreversible enough that it’s best not to risk it.
In this case, of course, the policy already has gone into effect (despite the tendency of the Trump administration and others to say that DACA “expires” on March 5).
In September, the Department of Homeland Security stopped allowing people to apply for an initial two-year grant of protection from deportation and work permit under DACA. It prevented people whose current work permits expired after March 5, 2018 for applying for renewal.
And it set a deadline of October 5 for anyone whose work permits were set to expire in the next six months to apply for one last renewal — a deadline that roughly 22,000 DACA recipients missed, many, it turns out, because of Postal Service delays and/or narrow deadline interpretations by US Citizenship and Immigration Services.
Judge Alsup’s order doesn’t fully reanimate the DACA program. It does not allow people who had not previously applied for DACA — even if they became eligible (say, by turning 16) after the Trump administration stopped accepting new applications on September 5 — to apply. And it doesn’t allow those who currently have DACA to apply for “advance parole,” or the ability to leave the United States and come back.
The order says that the Trump administration has to make it possible for people who already were approved for DACA to apply for two-year renewals of their work permits and deportation protections. That applies to the estimated 11,000 people whose work permits have already expired since September. It also applies to immigrants whose work permits are set to expire in the coming weeks or months, but didn’t get a chance to reapply under the administration’s rules.
This ruling comes in a lawsuit filed by the University of California system and a group of DACA beneficiaries shortly after the Trump Administration announced that the DACA program would be ended in six months time. That decision was announced in September of last year, meaning that the program would end in March 2018 and that the men and women who have benefited from the DACA program. That lawsuit joined several others that had been filed in the wake of the Administration’s announcement, including a DACA recipient in New York City and on behalf of the State of New York and roughly a dozen other Democratic-controlled states. Although they differ in some respects based on the individual circumstances of the Plaintiffs, each of the lawsuits raise essentially the same claims against the Administration’s action.
For example, each lawsuit alleges that the manner in which the repeal was announced violated the procedures required by the Administrative Procedure Act, a Federal law that sets forth how the Executive Branch and various regulatory agencies must proceed when enacting or repealing most, though not necessarily all, regulations that become part of Federal Law as authorized by Congress. This was the ground upon which Texas and a group of other states were successful in getting a stay imposed by a Federal District Court Judge and sustained by the Fifth Circuit Court of Appeals and the Supreme Court when they sued the Obama Administration over the much broader Deferred Action for Parents of Americans (DAPA) program.
The lawsuits also allege a handful of Constitutional arguments against the repeal of DACA. First, the lawsuits claim that the decision violates the Due Process Clause in the manner that it seeks to deprive the Plaintiffs of the benefits provided under the DACA programs. Second, the lawsuits argue that the decision to repeal the program violated the Equal Protection clause in that the decision was motivated at least in part by the intention to discriminate against Mexican-Americans and members of other minority groups. In support of these allegations, the Complaint borrows heavily from the lawsuits that had been filed against Trump’s Executive Order seeking to ban immigration and travel to people from a group of predominantly Muslim nations, an order that was struck down by several Federal Courts and ultimately severely limited by a divided Supreme Court earlier this year. In those cases, of course, the Plaintiffs used many of President Trump’s own comments as a candidate for President and dating back to before he was a candidate to establish what they allege is a bias against Mexican-Americans and other predominantly Latino immigrant groups.
Finally, the lawsuits raise claims under a legal principle known as “equitable estoppel.” Simply put, this doctrine applies in cases where parties have acted in reliance upon the actions or statements of another party to change their position in some respect and that making a change in the manner in which the parties have previously acted would be unfairly detrimental to the parties who relied on the aforementioned actions of the parties making the promise. In this case, DACA beneficiaries have argued that they relied on the changes in Federal policy regarding the treatment of people who were brought to the country illegally when they were children in the fact that they came forward and provided the Federal Government and law enforcement with detailed information and, in the words of Judge Alsop, significantly changed their position in reliance upon the Government’s representation that this information would not be used against them. Due to this, the individual Plaintiffs argue that the government should be prevented from ending the DACA program and from using any of the information provided by beneficiaries against them in any future immigration proceedings.
In his 49-page opinion, Judge Alsup, who was appointed by President Clinton in 1999 and has presided over several notable cases in his tenure such as a ruling issued last year finding the Federal Government’s no-fly list violated due process to the extent that it does not protect the due process rights of people erroneously placed on the list, ruled that the Plaintiffs were likely to succeed on each of these arguments and that therefore they were entitled to an injunction against ending the program pending a full trial on the merits. Prior to that time, of course, the Trump Administration has the option of appealing the Judge’s decision on the injunction to the Ninth Circuit Court of Appeals and, beyond that, to the Supreme Court, but that is a process likely to take several months at least. In the meantime, the injunction will remain in place, which means that the DACA program will remain in place for the time being, and will almost certainly remain in place well beyond the currently pending March 2018 expiration date. As Dara Lind notes in the Vox piece linked above,
This announcement came, as noted, on the same day that Trump held a bipartisan meeting with members of the House and Senate in which the fate of DACA program was a large part of the discussion. At issue was the question of Congressional action to codify the DACA program in some way so as to protect the beneficiaries, and perhaps to expand its coverage to include others brought to the United States as children who were not directly impacted by President Obama’s action. While members of the House and Senate from both sides of the political aisle have said that they wish to act to protect the DACA, no such action has been taken to date. The primary area of disagreement appears to be Republican insistence that any bill addressing DACA include funding for the President’s so-called “border wall,” something that Democrats have objected to on a united basis. This decision throws an unexpected monkey wrench into those negotiations to the extent that it arguably relieves Republicans of the pressure of the impending March deadline to extend the program. What impact that will have on Congressional action remains to be seen.
Here is Judge Alsop’s opinion:
Regents of the University of California Et Al v. Dept of Homeland Security Et Al Opinion by Doug Mataconis on Scribd
