Constitutionality of DACA Rescission

By: Michael Divers

On September 5, the current administration rescinded the guarantee to many young people currently in America illegally that the government would not interfere with their work or studies. This program, known as the Deferred Action for Childhood Arrivals (or DACA) was designed to allow young undocumented immigrants, brought to America illegally, work permits and safety from deportation. This group of young people, colloquially known as “Dreamers,” is a group of high-functioning, well-educated young men and women that are arguably aiding the United States economy.

This rescission is extremely unpopular, with 73 percent of Americans wanting legislation that protects Dreamers from deportation. President Trump has come out in support of protecting the group, and claims that he hopes “Congress will be able to help them out and do it properly.”

So if the president and the American people are in support of DACA, why get rid of it? Part of that answer stems from a 2015 case, Texas v. United States, in which 26 states challenged the lawfulness of Deferred Action for Parents of Americans and Lawful Permanent Residents (“DAPA”) and the expansion of DACA. DAPA was similar to DACA, but it applied to the parents of children with permanent legal status in America, rather than the children themselves. In that case, the Fifth Circuit and, subsequently, the Supreme Court upheld a preliminary injunction against both DAPA and the expansion of DACA. On June 29, 2017, the states involved in Texas v. United States claimed that DACA was unlawful for the same reasons as DAPA, and threatened to amend their suit to include DACA if the Department of Homeland Security did not rescind it by September 5, the exact date the Trump administration acted.

Legally, this action is already being challenged by a group of state attorneys general, claiming the rescission was unconstitutional and procedurally invalid. They are bringing the suit under five alternative theories. One of these theories is an equal protection argument that this action has some anti-Mexican or anti-Latino motive behind it. A similar argument was made when striking down Trump’s original travel ban; however, the argument in this case is far weaker than it was in the travel ban litigation.

Another, likely stronger, theory is one of Due Process. The argument is that these people have given up information about themselves in reliance on a promise of protection from deportation, and now that information may now be used against them.

However, the strongest argument according to two legal experts is that the Trump administration violated the Administrative Procedure Act by not engaging in a formal notice-and-comment process. This process of formal review is required when “substantive” rules are made but is not required for general statements of policy. Even though DACA was enacted without any formal rulemaking, it was technically just an exercise of prosecutorial discretion by the executive not to go after these low-priority, undocumented people. On the other hand, the Trump administration ruling out deferred deportation is a substantive rule that requires a reasoned explanation.

It is up for debate as to how this would play out in the court system, but hopefully we never receive an answer to that question. Trump has met with Democratic leaders and has apparently made progress towards a resolution that could result in congressional legislation for the Dreamers. Whether that legislation entails a continuation of the deferred action policies or a path to permanent legal status is not yet clear. What is clear is that Congress has six months to do something before this becomes a serious and real issue that few will be happy about.