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End of the DREAM? Rescission of DACA and the Subsequent State Lawsuit

End of the DREAM? Rescission of DACA and the Subsequent State Lawsuit

Some have called it “a political stunt” that must be thrown out of court.[1] Others refer to it as a lawsuit that is necessary to ensure that thousands of hard-working individuals who contribute $3 billion annually in local, state, and federal taxes[2] remain in the United States.[3] Despite the passionate arguments on both sides, there is no doubt that the lawsuit recently filed by states against the federal government seeking to invalidate its decision to end the Deferred Action for Childhood Arrivals program (“DACA”) has wide-ranging ramifications.

What is DACA?

Illegal immigration has always been a hot-button issue in the United States’ political arena. Since the 1970s, undocumented, or illegal, immigration has outpaced legal immigration.

To help tackle the issue of what to do with illegal immigrants currently in the United States, the Obama administration proposed the Development, Relief, and Education for Alien Minors Act (usually referred to by its initials, the “DREAM” Act). While efforts to get the legislation passed by Congress, President Obama issued an executive order in 2012 to create the “Deferred Action for Childhood Arrivals” program, known as DACA. DACA provides temporary relief from deportation and employment authorization to those who would be eligible to become legal United States residents if the DREAM Act were passed.[4]

Deferred action is a type of prosecutorial discretion, wherein the government refrains from commencing removal actions against certain illegal aliens.[5] It does not provide anyone with lawful residency status.[6]

Over the last five years, DACA has shielded nearly 800,000 undocumented immigrants from deportation. DACA grantees, also known as “DREAMers”, are undocumented immigrants who came to the U.S. before age 16 and who were under the age of 31 as of June 15, 2012. More than three-quarters of all approved DACA applications have been for Mexican nationals.[7]

DREAMers are provided a chance to stay in the country to study or work, but only if they meet certain conditions such as being enrolled in high school or having a high school degree or GED or having served in the United States military. Additionally, those seeking DACA status must show that they have clean criminal records.[8]

Those approved for the program are given a work permit and protection from deportation for two years, and these benefits can be renewed as long as the applicants continue to meet the criteria.

Deferred action and prosecutorial discretion in choosing to defer deportation of illegal aliens are not novel legal concepts. After Hurricane Katrina struck the United States in 2005, the United States Customs and Immigration Service granted deferred action to about 5,500 foreign students who had been studying here at the time of the disaster and allowed them to remain in the country.[9]

The legal bases for DACA

President Obama claimed numerous legal grounds for allowing such prosecutorial discretion and for its power to choose to forgo prosecution of illegal immigrants.

The first legal basis allowing such discretion is found in prior judicial decisions. In 2012, the United States Supreme Court recognized the executive branch’s broad powers within immigration law in the case Arizona v. United States.[10] There, the Court found that the executive branch has unusually broad discretion in matters of immigration law and it has wide latitude to enact policies deferring removal of illegal immigrants.

A second source of support for President Obama’s executive action allowing prosecutorial discretion comes from federal law, which expressly allows deferred action in immigration for “aliens who [have] been battered or subjected to extreme cruelty…”[11] Because the executive branch has the power for deferred action under those circumstances, it’s not much of a stretch to apply that discretion to grant deferred action to other aliens who satisfy DACA criteria.

On Tuesday, September 5th, Attorney General Jeff Sessions announced that the federal government would be rescinding DACA and that Congress would need to address the issue of illegal immigration in the next six months,[12] though any DACA grantee with a permit set to expire before March 5, 2018 would still be able to apply for a two-year renewal.

In the wake of the Attorney General’s announcement, a political firestorm, but more importantly a lawsuit, ensued.

States’ Lawsuit

Washington State Attorney General Bob Ferguson, New York Attorney General Eric Schneiderman, and Massachusetts Attorney General Maura Healey spearheaded last week’s suit, filed in the United States District Court in the Eastern District of New York, and were joined by attorneys general from many other states.[13]

There are five causes of action in the complaint. They include alleged violations of Fifth Amendment guarantees of “equal protection” and “due process,” as well as violations of the Administrative Procedures Act.

Fifth Amendment-Equal Protection Violation

The states argue that the decision to discontinue DACA is motivated, at least in part, by a discriminatory motive and a desire to harm a political group. As such, it violates the Fifth Amendment’s Equal Protection Clause, which provides that no state shall deny to any person within its jurisdiction, “equal protection of the laws.”

Mexicans make up the largest portion of DACA grantees. The states argue that discriminatory sentiments motivated his decision to terminate DACA. As support for this allegation, the states draw upon the times President Trump disparaged Mexicans during his presidential election campaign. On various occasions, Trump referred to Mexicans as criminals, thugs, and ‘bad hombres.’

Still, despite President Trump’s well-documented history of disparaging comments targeting Mexicans, discriminatory motive in any one administrative decision is very difficult to prove. There is no evidence of a clear connection between antipathy to Mexicans and the decision to end DACA.[14] Showing discriminatory intent is likely to require more than mere evidence that President Trump has made disparaging remarks in the past.

Administrative Procedures Act

Another of the lawsuit’s causes of action is based on the Administrative Procedures Act.[15] The states argue that the executive violated the Act by not going through notice-and-comment rulemaking procedure before taking a substantive action that impacts essential rights of DREAMers.

Section 553 of the APA requires an agency to undertake notice-and-comment rulemaking, an administrative law process whereby a federal agency provides public notice of a proposed substantive change to regulations and then seeks public input on the change. The impetus behind the notice-and-comment requirement is to ensure that Americans are aware of regulatory changes and to also get the citizenry involved in matters of importance.

Professor Daniel Hemel of the University of Chicago School of Law writes that revoking deferred action alters the rights and interests of DREAMers because it impacts their ability to work and be eligible for Social Security benefits and Medicare, if they meet other eligibility requirements. Thus, he argues, it is a substantive change that requires notice and comment period.[16]

Notice-and-comment in DACA’s repeal would have unfolded in the following way. The Department of Homeland Security would publish notice of the proposed rule and then allow at least 30 days after publication for the public to submit “written data, views, or arguments” regarding the proposed rule. Once the comment period ended, the Department would then have responded in some form to every comment that was received.

A 2013 case, American Forest Resource Council v. Ashe,[17] dealt with the issue of whether notice-and-comment is necessary when a regulation is being repealed and not merely revised. In that case, the Fish and Wildlife Service, a federal agency, sought to retract a rule that provided a protected habitat for an endangered bird known as the marbled murrelet. The federal appellate court held that the agency violated the Act when it retracted the rule. It reasoned that “an agency rule may not be repealed unless certain procedures, including public notice and comment, are followed, and that this is true even where the rule at issue may be defective.”

On the other hand, multiple law professors have criticized the notice-and-comment rulemaking argument in this case, arguing that President Obama and the Department of Homeland Security created DACA in 2012 in the first place via executive action without having gone through the notice-and-comment rulemaking procedures.[18] Professor Ilya Somin, writes, “it would be unusual if (DACA’s) repeal required more procedural hoops than its initial adoption.”

As of the afternoon of September 14, there are indications from Democratic leaders in Congress and the White House that a compromise may be reached that would protect DACA, perhaps rendering this lawsuit moot. Still, if it does go forward, or if DACA is threatened again by this administration, the legal issues discussed herein will be of renewed importance.


[4] Michigan State University School of Journalism, 100 Questions and Answers About Hispanics and Latinos, (2014).

[6] Id.

[8] http://www.npr.org/2017/09/05/548754723/5-things-you-should-know-about-daca

[9] Shoba Sivaprasad Wadhia, “In Defense of DACA, Deferred Action, and the Dream Act,” 91 Tex. L. Rev. (2013).

[11] 8 U.S. Code § 1227 - Deportable aliens, Paragraph 7(A).

[17] 946 F.Supp.2d 1 (D.D.C. 2013)