//  9/19/17  //  Commentary

Former President Obama made clear that if President Trump came for the Deferred Action for Childhood Arrivals program, Obama would speak out against it.  Well, after eight months of Trump attacking Mexico and Mexicans, women, the rule of law, Muslims, and a bunch of other people and groups too, Trump finally came for DACA and its beneficiaries, the Dreamers. And President Obama indeed spoke out.

Some other people did too.

Yesterday, two different teams of lawyers filed two additional challenges to the President’s planned wind down of the Deferred Action for Childhood Arrivals program.  As of last week, there were four lawsuits; three were challenges to the rescission of the DACA program-- one by the University of California; one by the states of California, Maine, Maryland, and Minnesota; and one by New York and Washington among other states.  The fourth lawsuit was originally filed as a challenge to the injunction against the Deferred Action for Parents of Americans program, and its related expansion of DACA.

One of yesterday’s challenges is on behalf of six extraordinarily accomplished DACA recipients.  They are lawyers, teachers, aspiring lawyers, aspiring doctors, and aspiring teachers.  If you’re interested in the challenge, and the legal arguments against rescission more generally, I’d encourage you to read the complaint

I’ll just highlight two of the arguments in the complaint here.  First, the complaint details how these DACA recipients, like so many others, invested in careers, education, and life plans based on the government’s representation that they could make those investments, and the government’s expectation that they would do so.  The recipients entered law school, PhD programs, medical school, and other programs to begin careers that would allow them to give back to others, and to this country.  Building those careers takes time—it takes several years of schooling; it takes several years of training; and it require long-term investments and life choices.  DACA recipients moved forward with those decisions because the government represented that they would have the opportunity to renew their work authorizations, which would give them the time to complete their schooling, finish their training, and actually practice the careers they were pursuing.  And the government repeatedly celebrated and highlighted DACA recipients’ impressive accomplishments, encouraging others to follow that path. 

What would be the point of giving someone a taste of a career and then yanking away their authorization to continue in it?  What would be the point of allowing someone – and indeed encouraging someone – to invest in pursuing a career that you won’t ultimately authorize them to pursue?  DACA made sense if the government was offering the prospect of renewing work authorization beyond the two-year term of each work authorization.  Why, otherwise, would the government encourage someone to start medical school, which takes at least four years to complete?  Who does two years of medical school just for kicks?  Why encourage students to invest in graduate schools to pursue careers they wouldn’t be authorized to practice in?   It’s a waste of everyone’s time and resources, in addition to being just downright cruel.

The Trump administration’s announcement that it is going to wind down of DACA makes nonsense of what the government repeatedly said and did about DACA over the last five years.  It forces DACA recipients and their families into difficult situations, with little prospect that things will change for the better.

Second, the complaint makes an argument that hasn’t gotten as much airtime in the other suits.  The argument is that the administration’s announced policy is arbitrary and capricious because the administration’s stated justifications for the policy don’t explain the policy it enacted.  The administration announced that it is rescinding DACA because it has concluded that it lacked the lawful authority to continue it.  That assertion is implausibly bizarre, given that it is coming from this administration, which has embraced – publicly and explicitly – very broad accounts of executive power, specifically over immigration, as Greg Sargent, Mike Dorf, and I all noted.   The administration’s position on the entry ban, for example, is in tension with its position on DACA.  So too is its position on the Arpaio pardon, the Comey firing, and the list goes on and on.

But the administration’s justification for winding down DACA is also implausible on its face.  In the memorandum announcing the wind down of DACA, the administration declares, on the one hand, that it lacks the lawful authority to continue with DACA, but then goes on to say that it will continue DACA, for some beneficiaries, for over two years.  It cannot be the case that the administration thinks DACA is illegal, and also that it can continue DACA in some fashion for two years.  For that reason, we’re arguing that the administration’s policy is arbitrary and capricious, and seeking a declaration that DACA is lawful.

Here is the introduction to the complaint:

The young women and men filing this lawsuit embody the American Dream.  Brought to this country as children and raised in families that often struggled with poverty and homelessness, each has achieved remarkable success through hard work, fierce determination, and incredible resilience.  These are characteristics that have defined Americans throughout our Nation’s history.  Plaintiffs in this case are also alike in that each has committed to helping others, choosing to direct their time, energy, and considerable talents toward defending, healing, educating, and uplifting individuals and communities that are too often ignored.  While each of the Plaintiffs is remarkable in his or her own right, their stories of success—and their commitment to serving others—are common among the nearly 800,000 young people who have come to rely on the Deferred Action for Childhood Arrivals (“DACA”) program.  

The decision to end the DACA program is a broken promise and an unprecedented violation of the constitutional rights of Plaintiffs and other young people who relied on the federal government to honor that promise.  The government established the DACA program with great fanfare in 2012.  Under DACA, individuals who were brought to the United States as children and meet certain criteria, and who are investigated and found to pose no threat to public safety or national security, are granted deferred action and work authorization for a two-year period, subject to renewal.  These young people are commonly referred to as “Dreamers” in recognition of the fact that they have long called this country home and aspire to be part of the American Dream.

To apply for DACA, eligible individuals are required to provide the government with highly sensitive personal information, pay a substantial fee, and submit to a rigorous Department of Homeland Security background check.  Initially, the DACA program was met with skepticism in immigrant communities, as many Dreamers were understandably reluctant to voluntarily disclose information (including their current home address) that could facilitate their removal from the United States and place their family members at risk.  To combat this fear the government launched an extensive outreach campaign urging Dreamers to apply for DACA, repeatedly promising that they would be able to renew their DACA status and that information they provided in connection with the program would not be used for immigration enforcement purposes.  As a result, hundreds of thousands of young people applied for, and were granted, DACA status.  The government quickly realized the administrative, law enforcement, public safety, and economic benefits it sought in establishing the program.

In creating DACA, the government offered Plaintiffs and other Dreamers a straightforward deal—if they stepped forward, shared sensitive personal information, and passed a background check, they would be granted renewable protection and would be allowed to live and work in the United States provided that they played by the rules.  DACA also provided access to important benefits, and enabled recipients to open bank accounts, obtain credit cards, start businesses, purchase homes and cars, and conduct other aspects of daily life that were otherwise often unavailable to them.  In so doing, DACA has allowed Plaintiffs and nearly 800,000 young people to become contributing members of society and pursue the American Dream.

In taking the irreversible step of identifying themselves to the government, Plaintiffs and other Dreamers trusted the government to honor its word and uphold its end of the bargain.  In reliance on the government’s promises, DACA recipients took out student loans, accepted job offers, moved to new cities, started businesses, bought homes and cars, and made numerous other life changing decisions.  They allowed themselves to fall in love, get married, and start families, trusting that the security and work authorization provided under DACA would enable them to care for (and remain in this country with) their spouses and children.   The transformative impact DACA had for Plaintiffs cannot be overstated.  Brought to this country as young children, Plaintiffs have spent virtually their entire lives in the United States.  They consider themselves to be Americans and call our nation home. 

Yet for much of their lives, Plaintiffs were denied basic opportunities and prohibited from realizing their full potential.  But DACA changed everything.  Beyond a work permit and access to a professional license, DACA provided Plaintiffs the certainty and security necessary to enroll in graduate programs, open businesses, hire employees, build relationships with clients, patients, and students, and begin to start families of their own.  Plaintiffs were able to take these risks, and enjoy the benefits of their hard work, because they trusted the government to honor its promises and live up to its word.

Three additional points.  One, this suit represents yet another instance in which government lawyers have fallen down on the job (more specifically, another instance in which government lawyers who are political appointees of the Trump administration have fallen down on the job). It is bizarre and unfortunate that a bunch of non-government lawyers now find themselves in the position of having to argue that this government program – which has immensely benefited and improved the lives of its beneficiaries, their families, and society – is legal when previous administrations have granted work authorizations with little legal kerfuffle.  As Lark Turner and I wrote, the Trump DOJ has reversed itself on a bunch of positions, and the Trump Solicitor General’s Office is advancing positions that no career attorney is willing to sign their name onto.  The White House Counsel’s Office is also embarrassing itself in a number of ways (and that’s not according to me).

Last week, Sharon McGowan wrote a moving piece in which she described how she made the decision to leave the government in order to better “protect and defend the Constitution.”  Instead of working to do so at the Civil Rights Division of the Department of Justice, McGowan explained: 

On January 20th, I got a call from my (now) boss, Lambda Legal’s CEO. Rachel offered me a job as Lambda Legal’s Director of Strategy in the Washington, D.C. office that it was about to launch.

I accepted on the spot.

President-elect Trump had already named Jeff Sessions as his attorney general, and I knew that if Mr. Sessions was appointed, there would be no chance for me to preserve what I’d been working on so hard and for so long. At least, not from “the inside.”

So McGowan left the government for Lambda Legal to do the important work of protecting and defending equal protection under the laws.  The Trump administration has, in many different ways, outsourced the protection of our system of laws.  Thankfully, there are people like McGowan who are willing to step up to the plate.

The team of people on yesterday’s complaint are trying to do something similar—the lawyers at Gibson Dunn (Jesse Gabriel, Katie Marquart, Ethan Dettmer, and Ted Boutrous); Barrera Legal Group (Luis Romero); Public Counsel (Mark Rosenbaum and Judy London); and Take Care’s own (that’s the important affiliation) Larry Tribe and Erwin Chemerinsky.

Two, do any of the “very fine” Trump political appointees care about the underlying policies behind DACA?  Do they care about its beneficiaries?  That’s a question I posed last week for the Republican legislators who are now in a position to legislative DACA’s protections –and more –into law.  But it’s a question for the administration lawyers as well.  Do they care about the policy goal of helping DACA beneficiaries?   Do they not?  Or do they care about Attorney General Sessions’ policy reasons for ending DACA? 

Three, none of this is an argument against Congress passing the DREAM Act, and securing for DACA beneficiaries a more permanent legal status that a President can’t attempt to do away with on a harsh whim.  But until they do so, there are at least some lawyers who will try to hold the government to its word.


Disclosure:  I'm among the counsel for the DACA benficiaries in the case discussed in this post, Garcia v. United States. 


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Leah Litman

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8/19/19  //  Commentary

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Charlie Gerstein

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